Carpenter v. Planck
| Decision Date | 02 May 1947 |
| Citation | 304 Ky. 644,201 S.W.2d 908 |
| Parties | CARPENTER et al. v. PLANCK. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Fleming County; Donald L. Wood, Judge.
Proceeding by Gladys Carpenter and others to remove M. B. Planck as administrator of the estate of Mary E. Planck, deceased. From an adverse judgment, plaintiffs appeal.
Judgment reversed with directions.
O. R Bright and Lander Bright, both of Flemingsburg, for appellants.
B. S Grannis and C. W. Fulton, both of Flemingsburg, for appellee.
S. B Planck and his wife, Mary E. Planck, owned and occupied a residence in Flemingsburg, Kentucky, each of them owning the title to a one-half undivided interest therein. The husband died several years ago intestate, and his personal estate was administered without the appointment of an administrator. The wife, Mary E. Planck, died intestate August 1, 1946, at the age of 93 years. She left no surviving child except appellee M. B. Planck, who is married. He and his wife occupied the residence of his parents as members of one family. The only two children ever born to appellee and his wife are dead, leaving no issue. All of the children of S. B. and Mary E. Planck, except appellee, were dead at the time of the death of Mary E. Planck, and none of them left issue surviving them, except Julia Planck, the daughter of decedent, her surviving children being the appellants here.
After the death of Mary E. Planck her only surviving child, appellee M. B. Planck, applied for and was granted letters of administration of the estate of his mother, her estate consisting chiefly, and practically entirely (with the exception of some antiques to be hereinafter mentioned and some minor articles of personal property which appellee testified in this case were not worth in the aggregate exceeding $20) of her one-half undivided interest in the residence and lot upon which it stood. Following decedent's death it was sold by agreement of her heirs at public auction for the sum of $8,220.
After the appointment of appellee as administrator of the estate of his mother he employed to direct and assist him as such fiduciary, C. W. Fulton and B. F. Grannis, practicing attorneys of the Flemingsburg Bar. Soon thereafter appellee's wife filed an action in the Fleming circuit court against her husband as administrator of his mother's estate to recover the sum of $4,000 alleged to be due for nursing services which she rendered to her mother-in-law before her death. In the meantime appellee as such administrator filed a list of the articles which he said constituted the entire personal property of his mother, but he fixed no price on any of those articles, nor did he include therein some antique furniture which he says his mother gave him before her death, with the exception of one piece which he says his aunt, his mother's sister, gave him.
The attorneys who filed the action of appellee's wife were the same attorneys whom he had employed to guide and direct him in discharging his fiduciary duties as administrator. One-half of the proceeds of the house and lot which the heirs sold by mutual agreement is $4,110 which, if the claim of plaintiff's wife is allowed in full, the balance of $110 will scarcely pay the cost of administration. It will thus be seen that appellee and his wife are seeking to appropriate to themselves the entire estate of his mother, leaving nothing to be distributed among the appellants who in the aggregate are entitled to receive one-half of their grandmother's estate.
In that situation on December 2, 1946, appellants, after due notice was given to appellee, moved the county court of Fleming County to remove him as administrator of his mother's estate and to appoint another who would primarily serve the interests of the estate for the benefit of decedent's heirs, and who did not occupy such an antagonistic position of seeking to appropriate the whole of the estate for the benefit of himself and his wife. The county court overruled that motion, followed by an appeal by appellants to the Fleming circuit court, at the hearing of which appellee gave his deposition and testified, inter alia, that he himself was the owner of the antique furniture as hereinbefore stated, and he also testified that the claim of his wife, as asserted in her action against him in his fiduciary capacity, was a just one and that she was entitled to recover the amount she claimed. Nevertheless the circuit court also overruled the motion of appellants, and to reverse that judgment they prosecute this appeal.
Section 395.160, KRS is the same as sec. 3846 of Carroll's Kentucky Statutes, and the pertinent part of it applicable to the facts of this case says: 'If a personal representative resides out of the state, becomes insane or otherwise incapable to discharge the trust, goes bankrupt or insolvent or is in failing circumstances, the county court shall remove him, * * *'. (Our emphasis) The only difference between that language as appearing in KRS, and as appearing in Carroll's Statutes is that the latter has a comma immediately following the word 'insane', thereby creating a distinct ground for removal as expressed by the language 'or otherwise incapable to discharge the trust', while KRS has omitted the comma at the place designated.
In the case of Hunt v. Crocker, 246 Ky. 338, 55 S.W.2d 20, 21, we held under a similar state of facts that they (the facts) 'clearly established that he (administrator) was utterly incapable of discharging the trust with that degree of fairness which the law requires of an unbiased administrator,' (our parenthesis and emphasis) thereby determining that the language of the statute saying 'incapable to discharge the trust' was an independent ground for the removal of the administrator. In that case the administrator, Crocker, collected an insurance policy on the life of his decedent amounting to $1,322 and asserted claim to that amount in himself, which was the chief ground upon which this court directed his removal which the circuit court refused to do.
In the case of Price's Adm'r. v. Price, 291 Ky 211, 163 S.W.2d 463, 465, B. E. Price was appointed as administrator of the estate of his deceased father, D. W. Price. A part of the estate of his decedent was a deposit account in a bank amounting to $5,500, and the administrator, after his...
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