Jones' Adm'r v. Lay

• Decision Date: 18 February 1902
• Citation: 66 S.W. 720
• Parties: JONES' ADM'R v. LAY et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 720

JONES' ADM'R v. LAY et al. ^[1]

Court of Appeals of Kentucky.

February 18, 1902

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by R. G. Phillips, as administrator of R. D. Jones, against J. S. Lay and others, to settle the estate of plaintiff's intestate. Judgment for defendants, and plaintiff appeals. Affirmed.

James Montgomery, for appellant.

R. L Stith and J. D. Irwin, for appellees.

WHITE J.

R. G Phillips, as administrator of R. D. Jones, deceased instituted this action in the Hardin circuit court to settle the estate of Jones, and to sell real estate necessary to pay debts. The appellee Lay was made a party defendant, as well as all the children and heirs of Jones; it being alleged that Lay claimed to be the administrator of Jones by appointment of the county court of Edmonson county, while appellant was appointed by the county court of Hardin. The appellee filed a special plea to the jurisdiction of the Hardin circuit court and also a plea in abatement,--a former action pending in Edmonson county. The court below sustained the plea to the jurisdiction and dismissed the petition, and hence this appeal.

By section 65, Civ. Code Prac., the circuit court of the county having by law authority to appoint an administrator is given jurisdiction of the action to settle the estate. In the case at bar, both county courts undertook to appoint an administrator of the estate of Jones. Only one had authority and jurisdiction to make the appointment, as it is conceded Jones was a resident of this state. The contest arises as to which of the two counties Jones was a resident of when he died. The proof heard on the plea seems, by common consent, to have been taken and used in the form of ex parte affidavits. We presume this was by consent, as no objection seems to have been made to the proof. The proof, on the one hand, shows: That Jones was over 80 years of age, and a cripple, being unable to do any kind of work. His wife is living in Edmonson county, on the home place, where they had resided over 60 years. Their children were all married and had homes of their own. One child lived in Texas, and one lived in Hardin county, on a farm of Jones, and where he died. The others lived in Edmonson county. That there had been no separation or estrangement between Jones and his wife, but that he went to his daughter's, in Hardin county, for a short visit, and...