Flannery v. Givens' Adm'r

• Decision Date: 10 October 1899
• Citation: 52 S.W. 962
• Parties: FLANNERY et al. v. GIVENS' ADM'R et al. [1]
• Court: Kentucky Court of Appeals

52 S.W. 962

FLANNERY et al. v. GIVENS' ADM'R et al. ^[1]

Court of Appeals of Kentucky.

October 10, 1899

Appeal from circuit court, Lincoln county.

"Not to be officially reported."

Action by Rebecca M. Flannery and others against William E. McAfee administrator of George W. Givens, and others, on an administrator's bond. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. S Owsley, for appellants.

J. B Paxton, for appellees.

HOBSON J.

George W. Givens by his last will devised $1,000 to Sarah Givens for life, with remainder to her children; directing his executors to retain it under their control and management, and pay the annual interest or profit to her during her life, and at her death the remainder to her daughters. The executors named in the will did not qualify. On August 2, 1881, William E McAfee qualified as administrator with the will annexed, with the other appellee as his surety on his official bond. He paid Sarah Givens the interest annually during her life. She died March 1, 1894, and appellants, who are her daughters, then instituted this action against said appellee as his surety, to recover the principal of the devise, he having become insolvent. She filed an answer, pleading that McAfee did not hold the fund as administrator, and that she was not bound as his surety for the payment of the money. To this answer a demurrer was sustained, but on appeal to this court it was held that the answer stated a good defense. See Givens v. Flannery, 49 S.W. 182. On the return of the case, appellants filed an amended petition, in which it was alleged that, within two years after his qualification as administrator, McAfee fully paid all of the debts of the estate and the special legacies mentioned in the will, except the legacy to appellants and their mother; that he had made no settlement of his accounts up to the bringing of this suit; and that there was a balance of several thousand dollars in his hands. They also filed a reply denying most of the allegations of the answer, but not putting in issue the allegation that McAfee had handled the fund during the life of Mrs. Givens, and paid her the interest. The court sustained a demurrer to this reply, and dismissed the petition.

The case as represented by the pleadings is precisely similar to Allen v. Kennedy (Ky.) 8 S. W. 882, where it was held that the surety was not liable. In that case there had been no settlement made by...