Equitable Trust Co. of Dover v. Bayes

• Decision Date: 17 December 1920
• Parties: EQUITABLE TRUST CO. OF DOVER v. BAYES.
• Court: Kentucky Court of Appeals

226 S.W. 390

190 Ky. 91

EQUITABLE TRUST CO. OF DOVER v. BAYES.

Court of Appeals of Kentucky.

December 17, 1920

Appeal from Circuit Court, Greenup County.

Suit by the Equitable Trust Company of Dover, Ky. administrator of the estate of M. J. Ealey, deceased, against William H Bayes, administrator of the estate of M. J. Ealey, deceased. Judgment of dismissal, and plaintiff appeals. Affirmed.

Bruce &amp Miller, of Russell, W. T. Cole, of Greenup, and A. D. Cole of Maysville, for appellant.

J. W Wood, of Ashland, J. B. Bennett, of Greenup, and Woods & Bryson, of Ashland, for appellee.

QUIN J.

M. J. Ealey died intestate January 21, 1918, a resident of Greenup county.

March 5th, at a special term of the county court, the Equitable Trust Company of Dover, Mason county, Ky. was appointed administrator of the estate, and executed bond as such. March 7th a statement was filed by the widow of decedent, waiving her right to act as administratrix, and requesting the court that her father be appointed in her stead, and this was done at a special term of the court on this date.

The Greenup county court meets on the first Monday of the month. In March, 1918, this fell on the 4th day. The order appointing appellant as administrator was not signed by the county judge, nor was its bond as such approved, but at the foot of said order, on the order book, appears this notation:

"The above order was entered through error on the part of the clerk, and never was intended to be placed on the record as an order and is stricken out."

In the order of March 7, 1918, which is entered on the same page of the order book as the order of March 5th, it is recited:

"On this day Wm. H. Bayes, the father-in-law of M. J. Ealey, appeared in open court and filed waiver of Martha J. Ealey, deceased, dated March 4, 1918, waiving her right under the statute to be appointed administrator of the said M. J. Ealey's estate, and moved the court to set aside the order made on the 5th day of March, 1918, appointing the Equitable Trust Company, of Dover, Ky. as administrator of the said M. J. Ealey's estate, and to appoint him, the said Wm. H. Bayes, as administrator of the said estate of M. J. Ealey, deceased, and offers to execute bond and qualify as said administrator; and the court, not having signed the order appointing said trust company as said administrator, and not having approved said trust company's bond as said administrator, sustains said Bayes' motion. Said order, appointing the said Equitable Trust Company as administrator aforesaid, is hereby set aside and held for naught."

Thereupon Bayes took the oath and qualified. This order is signed by the county judge. On the following day, to wit, March 8th, appellant moved the court to set aside the order entered on the preceding day: (1) On the ground that the trust company had been appointed administrator after two terms of the county court had expired following the death of decedent; (2) because no one had previously applied for letters of administration upon said estate; (3) that appellant upon its appointment had duly qualified, taken the oath of office, and proceeded to discharge its duties; (4) because the order of March 7th was entered without notice to it. The motion was overruled, and later this suit was filed to set aside the order of March 7th, which petition upon hearing was dismissed, and to reverse that judgment appellant has prosecuted this appeal.

In Ky. Stats. § 1058, it is provided there shall be a regular term of the county court in each county once every month on Monday, and special terms may be held at any time for the transaction of any business except the probating of a will or granting certain licenses, and that the court may adjourn from time to time until the business is disposed of.

Ky. Stats. § 3896, provides the precedence in the right of administration; preference being given to the surviving spouse, and then to such others as are next entitled to distribution.

In section 3897 it is provided that if no such person apply for administration at the second county court from the death of an intestate, the court may grant administration to a creditor, or to any other person in the discretion of the court.

Appellant was appointed on motion of a creditor. The March term was the second term after decedent's death, and if this term consisted of but one day, as the record...