Clark's Adm'r v. Farmers' Nat. Bank of Richmond

• Decision Date: 07 February 1907
• Citation: Clark's Adm'r v. Farmers' Nat. Bank of Richmond, 99 S.W. 674, 124 Ky. 563 (Ky. Ct. App. 1907)
• Parties: CLARK'S ADM'R v. FARMERS' NAT. BANK OF RICHMOND.
• Court: Kentucky Court of Appeals

99 S.W. 674

124 Ky. 563

CLARK'S ADM'R v. FARMERS' NAT. BANK OF RICHMOND.

Court of Appeals of Kentucky.

February 7, 1907

Appeal from Circuit Court, Madison County.

"To be officially reported."

Action by Francis Clark's administrator against the Farmers' National Bank of Richmond, Ky. From a judgment for defendant plaintiff appeals. Reversed.

Breckinridge & Breckinridge and R. H. Tomlinson, for appellant.

W. C Bennett, for appellee.

BARKER J.

In 1882, J. W. Gregory, who was then the sole executor of the estate of Francis Clark, deceased, deposited in the Farmers' National Bank of Richmond, Ky. the sum of $500. Afterwards Gregory died, and W. O. Goodloe was appointed and qualified as his administrator. In 1884 Goodloe, as administrator, drew his check on the bank for the sum deposited therein to the credit of his decedent as executor and the same was paid over to him. Subsequently, in 1904 appellant, W. D. Gregory, was appointed and qualified as administrator de bonis non with the will annexed of Francis Clark, Sr., deceased, and, having demanded of the bank payment of the $500 theretofore deposited by J. W. Gregory as executor of the estate of his decedent, and payment being refused, he instituted this action. The court overruled a general demurrer of the bank to the petition. Thereupon it filed an answer, controverting some of the allegations of the petition, and pleading, in the second paragraph, the payment of the sum in dispute by W. O. Goodloe, administrator of the estate of J. W. Gregory, deceased. In the third paragraph it pleaded the laches of the plaintiff in instituting this action, and in the fourth pleaded the statute of limitations. The court sustained a general demurrer to the third and fourth paragraphs of the answer, and overruled that to the first and second, the latter of which, as said before, is a plea of payment to the administrator of the executor.

Without discussing in detail the several interesting questions of pleading suggested in the briefs of counsel, it may be said that, as we view this case, there is but one substantial question on this appeal, and that is, whether or not the fund involved in this litigation was an asset in the hands of the administrator of the executor, or whether it passed, as an unadministered part of the estate of the original decedent to the administrator de bonis non. That it was deposited in the bank by the executor of Clark to his credit as executor is alleged in the petition. The rule in such cases is that the assets of a decedent, which have not been administered, pass and belong to the administrator de bonis non, and not to the administrator of the administrator. This, as an abstract principle of law, is not disputed. The practical question is what constitutes the administration of assets, as applied to the case before us? Undoubtedly, a great many cases are to be found in the books where the principle is stated generally that all assets remaining in specie pass to the administrator de bonis non, whereas the proceeds of those which have been converted into money vest in the administrator of the administrator, and the right of action against him concerning them vests in the heirs and creditors of the decedent, and not in his administrator de bonis non. Unquestionably, if in the...