D.C. Napier's Admr. v. W.G. Napier's Admr.

• Decision Date: 19 June 1925
• Citation: 210 Ky. 163
• Parties: Dora Cash Napier's Administrator, etc. v. W.G. Napier's Administrator, etc.
• Court: United States State Supreme Court — District of Kentucky

210 Ky. 163

Dora Cash Napier's Administrator, etc. v. W.G. Napier's Administrator, etc.

Court of Appeals of Kentucky.

Decided June 19, 1925.

Death — Administrator of Wife, Deserting Husband and Living in Adultery, Held Entitled to Damages for Death of Husband. — Recovery for death under Ky. Stats., section 6, goes directly to persons named therein, and forms no part of decedent's estate, and although wife had deserted husband and was living in adultery with another at time of his death, regardless of section 2133, forfeiting right of spouse in other spouse's estate for desertion and living in adultery, administrator of wife who survived

husband was entitled to recover from husband's administrator amount which he recovered for death of husband in railroad accident.

Appeal from Bourbon Circuit Court.

PURYEAR & CLAY and EMMETT PURYEAR for appellant.

TALBOTT & WHITLEY and VIRGIL CHAPMAN for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

W.G. Napier and Dora Cash were married in Lincoln county, Kentucky, in 1901. They lived together for a short time. They then separated and lived separately and apart from each other thereafter, but were never divorced. In March, 1921, W.G. Napier was killed at a railroad crossing by a railroad train. An action was filed by his administrator against the railroad company to recover for his death and judgment was recovered against the railroad company for $7,500.00, which was paid. While the action was pending Dora Cash Napier died. Her administrator brought this suit against her husband's administrator to recover the amount collected from the railroad company. The judgment was rendered under section 6 of the Kentucky Statutes, which provides that the amount recovered, less funeral expenses and cost of administration and costs of recovery, shall be for the benefit of and go to the kindred of the deceased in the following order:

"1. If the deceased leaves a widow or husband, and no children or their descendants, then the whole to such widow or husband.

"2. If the deceased leaves either a widow and children or a husband and children, then one-half to such widow or husband and the other one-half to the children of the deceased.

"3. If the deceased leaves a child or children, but no widow or husband, then the whole to such child or children. If the deceased leaves no widow, husband or child, then such recovery shall pass to the mother and father of deceased, one moiety to each, if both be living; if the mother be dead and the father be living the whole thereof shall pass to the father; and if the father be dead and the mother living, the whole thereof shall go to the mother; and if both father and mother be dead, then the whole of the recovery shall become a part of the personal estate of the deceased; and after the payments of his debts, the remainder, if any, shall pass to his kindred more remote than those above named, as is directed by the general law of descent and distribution."

The husband's administrator denies the rights of the wife's administrator and relies on section 2133, Kentucky Statutes, which is as follows:

"If the wife voluntarily leave her husband and live in adultery, or if the husband voluntarily leave his wife and live in adultery, the party so offending shall forfeit all right and interest in and to the property and estate of the other, unless they afterward become reconciled and live together as husband and wife."

The defendant showed by clear proof that the wife had voluntarily left her husband and lived in adultery and...