Hite's Adm'r v. Hite's Ex'r

• Decision Date: 27 October 1936
• Citation: Hite's Adm'r v. Hite's Ex'r, 265 Ky. 786, 97 S.W.2d 811 (Ky. Ct. App. 1936)
• Parties: HITE'S ADM'R v. HITE'S EX'R.
• Court: Kentucky Court of Appeals

97 S.W.2d 811

265 Ky. 786

HITE'S ADM'R v. HITE'S EX'R.

Court of Appeals of Kentucky

October 27, 1936

Appeal from Circuit Court, Warren County.

Action by Sim Calloway, as administrator of Henry Hite, deceased against Cain Gibson, as executor of Henry Hite, deceased. From an adverse judgment, plaintiff appeals.

Affirmed.

Oscar M. Smith, of Russellville, for appellant.

I. G Mason, of Adairville, and J. Wilbur Wade and J. U. Wade, both of Bowling Green, for appellee.

CREAL Commissioner.

On March 31, 1932, Henry Hite, a negro bachelor about 84 years of age, died at the home of Cain Gibson in Bowling Green in Warren county and, following his death, a writing purporting to be his will was duly probated as such in the county court of that county.

In August 1932, Sim Calloway was by order of the county court of Logan county appointed administrator of the estate of Henry Hite and thereupon qualified as such. On August 27, 1932, he instituted this action in equity in the Warren circuit court against Cain Gibson, alleging in substance that at the time of his death Henry Hite was a resident of Logan, and not of Warren, county, and that the Warren county court, under an honest yet erroneous view as to the residence of Henry Hite undertook to make an order appointing Cain Gibson executor under the alleged will of decedent, which order for the reasons indicated was void, since that court was without authority to probate the will, if any there was, or to appoint an executor thereunder; that Cain Gibson, acting under the void order of the Warren county court, had taken possession of personal effects and was attempting to administer upon same and had instituted suit seeking to sell the land of decedent.

He prayed that he be declared the duly appointed, qualified, and acting administrator of Henry Hite and defendant be declared not to be executor of Henry Hite and that he be required to turn over to plaintiff all property belonging to the estate of decedent and be enjoined from further attempting to act as executor.

A judgment sustaining a demurrer to and dismissing the petition was on appeal reversed by an opinion reported in Hite's Adm'r v. Gibson, 251 Ky. 651, 65 S.W.2d 731.

On a return of the case, an issue was made by appropriate pleading and orders as to the residence of Henry Hite at the time of his death; that is, whether in Logan or Warren county. After considerable proof bearing on that issue was taken, the chancellor on final hearing held that plaintiff had failed to establish the allegations of his petition and that the weight of evidence was with the defendant and adjudged that the prayer of the petition and the relief asked be denied. Plaintiff is again appealing.

Section 3894, Kentucky Statutes, reads: "When any person shall die intestate, that court shall have jurisdiction to grant administration on his estate that would have had jurisdiction to probate his will, had he made one."

Section 4849, Kentucky Statutes, provides: "Wills shall be proved before, and admitted to record by, the county court of the county testator's residence; if he had no known place of residence in this Commonwealth, and land is devised, then in the county where the land, or part thereof, lies; if no land is devised, then in the county where he died, or that wherein his estate, or part thereof, shall be, or where there may be any debt or demand owing to him."

These are the statutes fixing jurisdiction in matters of appointing administrators and probate proceedings and it is apparent, as is agreed by counsel for respective parties, that our task is to determine from the evidence the residence of Henry Hite within the contemplation and meaning of section 4849.

As disclosed by the record, Henry Hite was born and reared in or near Adairville in Logan county. While not so stated, we assume he was a Union soldier in the war between the states, since he was drawing a pension of $75 per month from the United States government. Witnesses for both sides are in agreement that for some years prior to about 1930 he made his home with Blanche Moore, a relative, at or near Adairville, although there is evidence that many years ago he spent a considerable portion of his time with Sim Calloway or his people in Todd county.

Sim Calloway testified that in January, 1930, he purchased a farm in Logan county which appears was in the Ferguson voting precinct. Shortly after he moved to the farm, during that year, Hite moved all his personal belongings and signified his intention to make that his home and lived there until November, 1931, when he left to go to Bowling Green to have a fence put around some property he owned there. On leaving he stated that he would return in two or three weeks. Shortly after his arrival in Bowling Green he was stricken with an illness from which he never recovered and died at the home of Cain Gibson in March, 1932. A number of witnesses, both white and colored, corroborated Sim Calloway concerning the residence of Hite on the latter's farm, and he is further corroborated in his statements that, after Hite became ill at Bowling Green, he expressed a desire and intention to return to Calloway's home. It is further in evidence that decedent always did his banking business with a bank in Adairville and had his pension check mailed to that place. He voted at Adairville and, while requested by Calloway to vote at Ferguson, he refused,...