Cornelison's Admr. v. Million

• Decision Date: 24 May 1910
• Citation: 138 Ky. 416
• Parties: Cornelison's Admr v. Million.
• Court: Kentucky Court of Appeals

Page 416

138 Ky. 416

Cornelison's Admr v. Million.

Court of Appeals of Kentucky.

May 24, 1910.

Appeal from Madison Circuit Court.

J. M. BENTON, Circuit Judge.

Judgment for defendant and plaintiff appeals. — Affirmed.

GRANT E. LILLY for appellant.

W. S. MOBBERLY for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

In 1885 the will of Eli C. Cornelison was probated. In this will he provided among other things, that "all the cash, notes and any debts that may be owing after my debts have been discharged, shall be Eli and Ernest Cornelisons, and if there be any other heirs, full brother or sister to them, they shall share equally. This money shall be loaned, and the interest shall be used for the benefit of the children to clothe and educate them, and as they become of age each shall draw his part of the principal." Cornelison v. Million, 124 S. W. 366. After this will was written, but before the death of the testator, a brother of Eli and Ernest was born. The property was reduced to cash, and one J. W. Bales appointed guardian of the three children, who were the only devisees under the will. Ernest Cornelison died in February, 1893, being then about 10 years old. He left surviving him his mother, father, and his two infant brothers, Eli and Pal. Had Ernest lived until he reached his majority, he would have been 21 on the 4th of November, 1904. In January, 1910, the appellant, Cornelison, was appointed administrator of Ernest, and brought this suit against Bales, the guardian, and Million, the county judge of Madison county, to recover the one-third interest of Ernest in the fund devised to him by his grandfather. The petition charges that in February, 1889, the guardian made a settlement of his accounts, in April, 1902, another settlement, and in February, 1903, a third settlement. In this last settlement, the amount in the hands of the guardian was $1,013 and it is averred that the administrator of Ernest Cornelison was entitled to one-third of this sum, or $337.66 2-3. It is further charged that the guardian, Bales, became insolvent between December, 1899, and January, 1902, and that his surety in his bond as guardian was insolvent at all times after December 1, 1899. It is further averred that the appellee, Million, was duly elected judge of the Madison county court in November, 1899, and acted as judge from December, 1899, to January, 1902, and during this time failed and neglected to make inquiry as required by law into the solvency of Bales and his surety, and by reason of his failure to make this inquiry in the manner required by law the estate of the ward in the hands of Bales was lost, and a judgment was asked against Bales and Million for the amount alleged to be due the administrator. To the petition a demurrer interposed by Million was sustained, and the question before us is the correctness of this ruling of the court.

Section 2018 of the Kentucky Statutes, under which it is sought to hold Million liable, has been construed by this court in a number of cases, among them Cornelison v. Million, 129 Ky. 573, 112 S. W. 654. But the question presented by this record does not in our judgment fall within the meaning of the statute. The ward of Bales died several years before Million became county judge, and so it follows that Million as county judge could not be chargedwith the duty of inquiring into the solvency of Bales so far as any money in his hands as guardian of Ernest Cornelison is concerned, for the simple reason...