Johnson v. Ducobu

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtDUNCAN
Citation258 S.W.2d 509
Decision Date22 May 1953
PartiesJOHNSON et al. v. DOUCOBU.

Page 509

258 S.W.2d 509
JOHNSON et al.
v.
DOUCOBU.
Court of Appeals of Kentucky.
May 22, 1953.

Nat Ryan Hughes, Murray, for appellants.

Flavius B. Martin, Farland Robbins, Mayfield, for appellee.

DUNCAN, Justice.

Mittie Griffith Ducobu died intestate on November 28, 1948, survived by her husband, Oscar Ducobu, a brother, Ernest Griffith, and a nephew, D. Blythe Johnson, as her only heirs at law. Her husband was appointed administrator of her estate on December 4, 1948, and in this capacity, he distributed most of decedent's property.

On August 18, 1950, the brother and nephew filed a petition in equity against the

Page 510

husband, seeking a settlement of the estate and a recovery in its behalf of certain personal property to which the husband asserted title individually. The issues raised by the answer concerned the decedent's ownership of two diamond rings and a stock certificate. The answer also denied that the amount of money claimed by the heirs was found in a lockbox. These questions were submitted to a jury on an issue out of chancery, and a judgment was entered pursuant to the verdict finding all issues in favor of the husband. The appellant, D. Blythe Johnson, filed a claim for $5,092.72, which he asserts represents expenses incurred by him in the prosecution of the suit. The Chancellor denied payment of the claim, and the appeal is from only that part of the judgment which disallows its payment.

In suits involving the settlement of estates, the Chancellor has a broad discretion in the allowance of costs, and his finding will not be disturbed unless it is apparent that there has been an abuse of discretion. Goodwin's Ex'r v. Goodwin, 301 Ky. 526, 192 S.W.2d 493; KRS 453.040.

Authority for the allowance is claimed under KRS 412.070, which provides:

'In actions for the settlement of estates, or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, if one or more of the legatees, devisees, distributees or parties in interest has prosecuted for the benefit of others interested with him, and has been at trouble and expense in that connection, the court shall allow him reasonable compensation for his trouble and for necessary expenses, in addition to the fees and costs. This allowance shall be paid out of the funds recovered before distribution. The persons interested shall be given notice of the application for the allowance.'

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29 practice notes
  • Railey v. Webb, No. 06-5806.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 26, 2008
    ...see also Marlowe v. Kentucky, 709 S.W.2d 424, 428 (Ky.1986) (requiring "evidence of actual bias"); Johnson v. Ducobu, 258 S.W.2d 509, 511 (Ky.1953) (emphasizing that "we have never gone so far as to require the disqualification of a judge simply because a party does not belie......
  • Stopher v. Com., No. 1998-SC-0334-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • November 21, 2001
    ...Ky., 348 S.W.2d 759, 760 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962); see also Johnson v. Ducobu, Ky., 258 S.W.2d 509 (1953). The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal. Webb v. 57 S.W.3d 795 Com......
  • Carlozzi v. Perkins Law Group, No. 2006-CA-002102-MR (Ky. App. 10/5/2007), No. 2006-CA-002102-MR.
    • United States
    • Court of Appeals of Kentucky
    • October 5, 2007
    ...Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961), cert. denied, 368 U.S. 993, 82 S. Ct. 613, 7 L. Ed. 2d 530 (1962); and Johnson v. Ducobu, 258 S.W.2d 509 (Ky. Page 16 "The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal." St......
  • Abbott, Inc. v. Guirguis, 2018-SC-0577-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • February 18, 2021
    ...be predicated on stated facts ..."); German Ins. Co. v. Landram , 88 Ky. 433, 440, 11 S.W. 367, 369 (1889). In Johnson v. Ducobu , 258 S.W.2d 509, 510 (Ky. 1953), and while our predecessor court reaffirmed the requirement of a factually-based affidavit, it also noted that it had "......
  • Request a trial to view additional results
29 cases
  • Railey v. Webb, No. 06-5806.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 26, 2008
    ...see also Marlowe v. Kentucky, 709 S.W.2d 424, 428 (Ky.1986) (requiring "evidence of actual bias"); Johnson v. Ducobu, 258 S.W.2d 509, 511 (Ky.1953) (emphasizing that "we have never gone so far as to require the disqualification of a judge simply because a party does not belie......
  • Stopher v. Com., No. 1998-SC-0334-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • November 21, 2001
    ...Ky., 348 S.W.2d 759, 760 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962); see also Johnson v. Ducobu, Ky., 258 S.W.2d 509 (1953). The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal. Webb v. 57 S.W.3d 795 Com......
  • Carlozzi v. Perkins Law Group, No. 2006-CA-002102-MR (Ky. App. 10/5/2007), No. 2006-CA-002102-MR.
    • United States
    • Court of Appeals of Kentucky
    • October 5, 2007
    ...Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961), cert. denied, 368 U.S. 993, 82 S. Ct. 613, 7 L. Ed. 2d 530 (1962); and Johnson v. Ducobu, 258 S.W.2d 509 (Ky. Page 16 "The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal." St......
  • Abbott, Inc. v. Guirguis, 2018-SC-0577-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • February 18, 2021
    ...be predicated on stated facts ..."); German Ins. Co. v. Landram , 88 Ky. 433, 440, 11 S.W. 367, 369 (1889). In Johnson v. Ducobu , 258 S.W.2d 509, 510 (Ky. 1953), and while our predecessor court reaffirmed the requirement of a factually-based affidavit, it also noted that it had "......
  • Request a trial to view additional results

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