Ferguson's Adm'r v. Ferguson's Adm'r

• Citation: 255 Ky. 230,73 S.W.2d 31
• Parties: FERGUSON'S ADM'R et al. v. FERGUSON'S ADM'R.
• Decision Date: 22 June 1934
• Court: Court of Appeals of Kentucky

73 S.W.2d 31

255 Ky. 230

FERGUSON'S ADM'R et al. v. FERGUSON'S ADM'R.

Court of Appeals of Kentucky

June 22, 1934

Appeal from Circuit Court, Carter County.

Action by Roscoe Ferguson, as Leonard Ferguson's administrator against the Kentucky & West Virginia Power Company, wherein B. F. Fannin, as Leonard Ferguson's administrator, filed a motion to be substituted as plaintiff in lieu of Roscoe Ferguson. From a judgment overruling his motion, B. F. Fannin appeals.

Affirmed.

W. J Fields, of Olive Hill, and J. K. Lewis, of Grayson, for appellants.

R. C Littleton, of Grayson, and James Clay, of Morehead, for appellee.

DRURY Commissioner.

This is a companion case to Kentucky & West Virginia Power Company v. Leonard Ferguson's Adm'r, ___ Ky. ___, ___ S.W.2d ___, ^[1] this day decided.

Formerly Wilse Ferguson, the father of Leonard Ferguson, owned a farm in Elliott county, whereon he and his family resided. In 1926, Wilse Ferguson killed a man and fled the state. Mrs. Ferguson, thus left to shift for herself, went, in the spring of 1927, to Rowan county to live with her two sons Roscoe and Powell, and took with her Leonard Ferguson, her infant son, then about nine years old, and there they have since resided. Whether Wilse Ferguson, while a fugitive, contributed to the support of his family is disputed. In 1930 he was apprehended, and he and his wife sold the farm in Elliott county to raise money for his defense. He was convicted and sent to the penitentiary, where he was when his son Leonard Ferguson met his death.

On September 23, 1932, Wilse Ferguson, Leonard Ferguson's father, being in the penitentiary, and his mother, Polly Ferguson, waiving her right to serve as administratrix, his brother Roscoe Ferguson was, by order of the Rowan county court, appointed and qualified as administrator of Leonard Ferguson. On April 4, 1933, Roscoe Ferguson, as such administrator, began the above suit against the Kentucky & West Virginia Power Company to recover for his death.

On August 26, 1933, B. F. Fannin was, by order of the Elliott county court, upon motion of Wilse Ferguson, appointed and qualified as administrator of Leonard Ferguson. On August 28, 1933, Fannin appeared in the Carter circuit court, and in the action against the power company moved that he be substituted as plaintiff in lieu of Roscoe Ferguson, which motion, after hearing evidence, was by the court overruled. From that judgment Fannin has appealed.

The right to appoint an administrator, probate a will, or qualify an executor, is vested in the county court of the county wherein a decedent was domiciled, when he died. Hite's Adm'r v. Gibson, 251 Ky. 651, 65 S.W.2d 731. For twenty-five years Wilse Ferguson owned and, with his family, lived upon a farm in Elliott county; that was then his residence and theirs. Munday v. Baldwin, 79 Ky. 121; L. & N. R. Co. v. Kimbrough, 115 Ky. 512, 74 S.W. 229, 24 Ky. Law Rep. 2409; Fitzpatrick's Guardian v. Baker, 227 Ky. 788, 14 S.W.2d 181.

A person's domicile is not changed by his involuntary confinement in a penitentiary or other prison. 19 C.J. 421, § 45; 9 R. C. L. 552, § 16. On March 4, 1933, Wilse Ferguson was released by the prison authorities...