Hackett v. State Bank & Trust Co.

• Decision Date: 21 October 1913
• Parties: HACKETT v. STATE BANK & TRUST CO. et al.
• Court: Kentucky Court of Appeals

159 S.W. 952

155 Ky. 392

HACKETT v. STATE BANK & TRUST CO. et al.

Court of Appeals of Kentucky.

October 21, 1913

Appeal from Circuit Court, Madison County.

Action by Mrs. Orren Hackett against the State Bank & Trust Company and another. From a judgment dismissing the petition plaintiff appeals. Affirmed.

Smith &amp Smith, of Richmond, for appellant.

J. A Sullivan and Burnam & Burnam, all of Richmond, for appellees.

NUNN J.

Appellant instituted this action, alleging in substance that her husband died in the year 1878 intestate, that no administration was ever granted on his estate, and that all the property that he owned at that time was owned in partnership with his brother, B. C. Hackett. His brother, B C. Hackett, who survived him, was unmarried, and he undertook to settle their partnership affairs, but did not settle them in whole or in part, and he died in the year 1907 testate. Appellant alleged that she never at any time knew of what the partnership property consisted until about three years after the death of B. C. Hackett, when she found a small book kept by him during his life, and she discovered for the first time that the partnership owned a lot of cattle, which sold for $4,000, and that they owned bank stock which sold for $3,500, and that B. C. Hackett received $3,500 and $4,000, for which he failed to account, and that she was entitled as the widow of Orren Hackett to one-third thereof. Appellee filed both a special and general demurrer to the petition, which were sustained, and leave was given to amend, which appellant declined to do, and the petition was dismissed, and she appeals.

A general demurrer was improperly sustained, for the reason that the statute of limitations should have been pleaded. It cannot avail on demurrer, but should have been pleaded, thus allowing the appellant to plead any matter that she could to avoid the effect of the statute of limitations. See case of McCormick v. Perry, etc., 93 S.W. 607, 29 Ky. Law Rep. 420.

We have arrived at a different conclusion in regard to the sustaining of special demurrer, for the reason that the plaintiff had not legal capacity to bring this action. She is the widow of Orren Hackett, and sues for a third of the two sums. Section 428 of the Code provides: "A representative, legatee distributee or creditor of a deceased person may bring an action in equity for the settlement of his estate." And the Code further provides...