Hargis v. Sewell's Adm'r

• Decision Date: 06 March 1888
• Citation: 7 S.W. 557,87 Ky. 63
• Parties: HARGIS et al. v. SEWELL'S ADM'R.
• Court: Kentucky Court of Appeals

7 S.W. 557

87 Ky. 63

HARGIS et al. v. SEWELL'S ADM'R.

Court of Appeals of Kentucky.

March 6, 1888

Appeal from circuit court, Fayette county.

Bronston & Kinkead and Hargis & Eastin, for appellants.

Breckinridge & Shelby and Wm. Lindsay, for appellee.

PRYOR C.J.

William Sewell died in the county of Breathitt in the year 1855 leaving his widow, Emaline, surviving him, and several children. His father, Thomas Sewell, administered on his estate, and, as is alleged, made a final settlement of his accounts as such with the judge of the Breathitt county court in June, 1859, showing a balance due the children and widow of $6,447, that was approved and confirmed. Some years after this settlement was made, the records of the court were destroyed, and all evidence of the settlement rested in the recollection of those who aided in making it. Thomas Sewell the administrator, lived in the same county for years, but prior to the present controversy had removed to the county of Fayette. He was a man of considerable means, and having a large estate to manage, and being advanced in years, made, in the year 1882, a deed of trust of all his estate to Wilgus of Lexington, giving to the latter the control thereof, retaining an ample support for himself and wife during life, and at his death the trust to terminate, and his estate to pass by descent to his heirs in the manner provided by the statute. He died in the year 1882, and the present appellee, who is his administrator, filed this petition in equity for a settlement of his estate, making his children defendants. After the death of William Sewell, his widow, Emaline, married the appellant John S. Hargis. The marriage took place prior to the year 1859, when the settlement was made by Thomas Sewell, in the county of Breathitt, of his son William's estate. John S. Hargis and his wife, (formerly the widow of William Sewell,) Emaline, and some of her children by her first husband, filed an answer in this suit by Thomas Sewell's administrator, alleging the settlement made in 1859, and claiming the balance due on that settlement of $6,447, with the interest; asking judgment for that amount against Thomas Sewell's administrator. The making of the settlement was denied by the administrator, and also a denial of any indebtedness whatever, with the plea of the statute of limitations interposed as a bar to the recovery. The alleged settlement made in the year 1859 having been destroyed, it appears that after the institution of the present action, viz., in January, 1884, by proceedings in the county court, the lost or destroyed record was supplied by the appointment of a commissioner, who reported, from the evidence before him, that a settlement was made in the year 1859, showing a balance in the administrator's hands for distribution of $6,447 as of that date. Whether the administrator had notice of this motion to supply the record does not appear; but, whether so or not, the county judge swears that the settlement was made, and the balance reported by the commissioner was the amount found due on the settlement made by him with Thomas Sewell as the administrator of his son. There is conflicting testimony as to the character and value of the estate passing into the hands of the administrator, and, after the lapse of so many years, it must necessarily be uncertain as to the value of the assets of William Sewell's estate that passed to his administrator, or the amount for which he was properly chargeable. We will assume, however, for the purposes of this case, that such was the condition of the estate in the year 1859. While this case was progressing in the court below, the claim of several of the children or grandchildren was withdrawn by a compromise effected between them, and the only question presented now arises as to the claim of the widow; the appellee insisting that her claim, if any existed, is barred by the statute. It is claimed-- First, that this balance on the settlement of 1859 was a trust fund in the hands of the administrator, and for that reason the statute of limitation is not an available defense; secondly, that the widow, Emaline, having married John S. Hargis, who is now living, prior to the year 1859, she has been under the disability of coverture during the entire period, and therefore the statute does not run against her; and, lastly, that the acknowledgment by Thomas Sewell of his indebtedness avoids the statutory bar.

Courts of equity in this state, prior to the adoption of the Revised Statutes, assumed the power, and properly, to apply the statute of limitations to cases of exclusively equitable cognizance, although the old statutes, by their terms applied alone to actions at law; but now the statute of limitations applies to all actions, whether at law or in equity, and the chancellor can exercise no discretion on the subject, but must apply the statute, when properly pleaded, although the jurisdiction over the subject-matter belongs exclusively to a court of equity. There are cases where the statutory time cannot operate as a bar, and an exception is found in the statute in relation to a continuing and subsisting trust. Section 20, art. 4, c. 71, entitled "Limitation of Actions," provides: "The provisions of this chapter shall not apply in the case of a continuing and subsisting trust, nor to an action by a vendee of real property, in the possession...