Fleece, Admr. v. Shackelford, Judge
| Decision Date | 14 October 1924 |
| Citation | 204 Ky. 841 |
| Parties | Fleece, Admr., et al. v. Shackelford, Judge Madison Circuit Court. |
| Court | Kentucky Court of Appeals |
Mrs. Mary M. Fox and her sister, Anna D. Moore, lived together in Boyle county. Mrs. Fox died intestate in March, 1920. By her will she devised $17,000.00 in bonds to be held in trust, the income to be paid to Anna D. Moore. At the death of Anna D. Moore the trust estate was devised in specific amounts to various persons, with a residuary legatee.
The testatrix's brother-in-law, Charles C. Fox, was named as executor and trustee. He qualified as such and made a settlement as executor in 1920. However, no final distribution of the estate was had as the trust continued for the benefit of Mrs. Moore.
Charles C. Fox died testate on December 1, 1922, and Hugh B. Fleece qualified as executor under his will and also as administrator de bonis non with the will annexed, and trustee under the will of Mary M. Fox.
Anna D. More died intestate April 1, 1923, and Eugene Ross qualified as administrator of her estate. After her death and the cessation of the trust, Fleece proceeded with the distribution of testator's estate, and paid out to various devisees legacies aggregating approximately $16,000.00. In so doing he paid all the legatees except one to whom $4,000.00 was devised and to whom he paid only $3,000.00. There is remaining in his hands stock of the par value of $3,800.00, of which under the will $1,000.00 will go to this legatee and the balance to the residuary fund.
Pending this distribution, Eugene Ross, as administrator of Anna D. Moore, presented to Fleece, as administrator of Mary M. Fox, a verified claim, and demanded of him $17,000.00 with interest from the date of the death of Anna D. Moore, alleging that the $17,000.00 in bonds were the property of his intestate, and that the testatrix, Mrs. Mary M. Fox, had procured them from her without any consideration, and by fraud and undue influence.
Payment was refused and Ross, as administrator, on November 1, 1923, filed suit in equity in the Madison circuit court seeking to recover the amount of his claim. The administrator and all the devisees were made parties to that suit. Of these, three resided and were served in Madison county, and summons was served on the others in the various counties of their residence.
Subsequently, on the 21st of December, 1923, Fleece as administrator, &c., filed suit in equity in the Boyle circuit court and obtained an injunction in that court, requiring Ross to prosecute his action in that suit. On motion before a judge of this court that injunction was discharged on the sole ground that the suit to settle the estate was not commenced within three years after the qualification of Fox as executor and was therefore barred by the provisions of section 436 of the Civil Code.
Thereupon the various defendants to the suit in the Madison circuit court filed therein a special demurrer to the jurisdiction of that court, which was overruled and exceptions taken. Since then the defendants in that suit filed in this court a petition, setting out the above matters together with a transcript of the various proceedings, alleging that the Madison circuit court has no jurisdiction of the subject of that action and praying for a writ of prohibition against the Hon. W. R. Shackelford, as judge of the Madison circuit court, prohibiting him from taking any further action in that suit. The issues have been completed by a response.
We are met at the threshhold by the inquiry, will this court, under the circumstances, entertain the petition?
In Board of Prison Commissioners v. Crumbaugh, 161 Ky. 540, it is said:
"Under section 110 of the Constitution this court has power to issue such writs as may be necessary to give it a general control of inferior jurisdictions, and it is well settled that a writ of prohibition may issue in a case like this whenever the inferior court is proceeding out of its jurisdiction, or where it has jurisdiction, but an appeal will not furnish an adequate remedy or there is no other remedy."
In a review of all the authorities the rule was thus stated in Ohio River Contract Co. v. Gordon, 170 Ky. 412:
Here, if the venue is properly laid, the lower court has jurisdiction; also that court is empowered to pass on the question of venue. Further, there may be an appeal to this court from a final judgment in the case; hence, if such appeal affords an adequate remedy, the writ should be denied without considering the petition on its merits. An appeal, however, does not always afford an adequate remedy.
Rush, &c. v. Denhardt, 138 Ky. 238, was a proceeding to annul a liquor license. On a motion to require the county judge to vacate the bench, affidavits were filed, which, if true, showed that he had prejudged the case before hearing the evidence. In that character of case the losing party had an appeal to the circuit court, but inasmuch as the order of revocation in the county court would suspend the license during the pendency of the appeal, the court held that the petitioner was entitled to a fair and impartial hearing in the county court, and that an appeal would not be an adequate remedy and granted the writ.
To the same effect are Hargis v. Parker, 85 S. W. 705, and Hindman v. Toney, 107 Ky. 426. However, in those cases it appeared that something more was apprehended than mere delay and expense incident to the appeal. Here there is no disputed question of fact, and the respondent has exercised his right to pass upon the question of venue as a matter of law and in overruling the demurrer has determined it in favor of his jurisdiction. This ruling cannot be reviewed on appeal until a final...
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Blenke v. Caldwell
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