Jackson's Adm'r v. Asher Coal Co.

• Decision Date: 06 May 1913
• Citation: 156 S.W. 136,153 Ky. 547
• Parties: JACKSON'S ADM'R v. ASHER COAL CO [d]
• Court: Kentucky Court of Appeals

156 S.W. 136

153 Ky. 547

JACKSON'S ADM'R v. ASHER COAL CO ^[d]

Court of Appeals of Kentucky.

May 6, 1913

Appeal from Circuit Court, Bell County.

Action by Henry Jackson's administrator against the Asher Coal Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

O'Rear & Williams, of Frankfort, and Lewis F. De Busk, W. G. Colson and P. Herbert Spencer, all of Middlesboro, for appellant.

Sampson & Sampson, of Middlesboro, for appellee.

CARROLL J.

Henry Jackson died on December 15, 1910, and on February 7, 1911 letters of administration on his estate were granted to John H. Hurst, public administrator for Bell county. Thereafter Hurst, as administrator, brought this suit against the appellee company to recover damages for the death of his intestate. In answer to the summons the defendant, now appellee, obtained a rule against the administrator to file copies of the orders of the Bell county court showing his appointment, and in response to this rule the administrator filed the following orders of the Bell county court "Comes Melinda Jackson, widow of Henry Jackson deceased, and waives and relinquishes her right and preference to qualify as administratrix of her said deceased husband's estate, and moves the court that the administration of said estate of Henry Jackson, deceased, be referred to John H. Hurst, public administrator and guardian for Bell county, for administration, and the court, being advised, refers the said administration of said estate of Henry Jackson, deceased, to the said John H. Hurst, public administrator and guardian for Bell county, Kentucky." When this order was filed, the defendant entered a demurrer to the petition, which was sustained; and, the plaintiff declining to plead further, his petition was dismissed, and he is here on appeal.

Two questions are presented by the record: (1) Was the order of the county court referring the estate to Hurst as public administrator void; and (2) if so, could the question be raised by a demurrer? Of course, if Hurst was not administrator of Jackson, he had no authority to institute or maintain the action, as his right to sue depended entirely on the fact that he was the administrator, and whether or not he was administrator depended entirely upon the jurisdiction of the Bell county court to appoint him. We had the identical question here presented before us in Underwood v. Underwood, 111 Ky. 966, 65 S.W. 130, 23 Ky. Law Rep. 1287. In that case the jurisdiction of the county court to place the estate of a deceased person in the hands of a public administrator, under section 3905 of the Kentucky Statutes, before the expiration of three months from the death of the decedent administered on, was directly drawn in question, and the court said: "We are of the opinion that the county courts are without jurisdiction to place estates in the hands of public administrators, except under the circumstances provided in section 3905. It is a jurisdictional fact to be shown that the decedent has been dead more than three months, and that no one else has applied for letters of administration. If the county court can place the estate of a deceased person in the hands of the public administrator under the circumstances in this case, then in every case the county court can, without consulting the distributees, kinsmen, or creditors of the estate, place the estate in the hands of the public administrator immediately upon the death of the deceased, thus entailing in some instances great expense and loss to the estate." Again, in Young's Adm'r v. Louisville & Nashville R. R. Co., 121 Ky. 483, 89 S.W. 475, 28 Ky. Law Rep. 451, the court said: "The public administrator is an official of the county, and he executes one bond for the faithful discharge of his duties, which is to secure all estates referred to him under the statutes. He has no power to receive and the court has no power to refer estates to him for settlement except in accordance with the provisions of section 3905 of the statutes." The correctness of the conclusion reached by the court in Underwood v. Underwood is vigorously assailed by counsel for appellant, but, whatever the opinion of the court as now constituted might be if the question were an open one, we are not disposed to overrule this case.

When a statute is fairly open to two constructions, either one of which will carry out its purpose, and this court, upon full consideration, adopts one of these constructions, it should be adhered to, especially when, as in this instance, it has become a settled part of the law. The Underwood Case has been referred to in the opinions of this court a number of times but has never been either criticised or questioned, although a different construction has been placed on section 3897 of the Kentucky Statutes, which is quite similar to section 3905. In Phillips v. Hundley, 135 Ky. 269, 122 S.W. 147, in pointing out the distinction in the rulings of this court in the construction of sections 3905 and 3897, we said: "In Underwood v. Underwood, 111 Ky. 966 [65 S.W. 130, 23 Ky. Law Rep. 1287], the court held that the appointment of a public administrator before the expiration of three months after the death of a decedent was void, holding that under section 3905 of...