Louisville & N. R. R. Co. v. Schumaker's Admx.

• Decision Date: 20 October 1899
• Citation: 112 Ky. 431
• Parties: Louisville & N. R. R. Co. v. Schumaker's Admx.
• Court: Kentucky Court of Appeals

112 Ky. 431

Louisville & N. R. R. Co. v. Schumaker's Admx.

Court of Appeals of Kentucky.

October 20, 1899.

APPEAL FROM BOYLE CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS REVERSED.

JOHN M'CHORD, R. P. JACOBS, H. W. BRUCE, C. R. M'DOWELL AND EDWARD W. HINES, FOR APPELLANT.

ROBERT HARDING AND JOHN W. RAWLINGS, FOR APPELLEE.

OPINION OF THE COURT BY JUDGE PAYNTER — REVERSING.

This action was brought by the widow of John Shumaker, deceased, as administratrix of his estate, to recover damages for the loss of his life, which is alleged to have been caused by the negligence of the appellant.

The first question to be considered in the judgment of the court upon the plea in abatement. The occupation of the intestate was that of brakeman on railroads. On September 12, 1895, his residence was Madison county, Ky. On that day, having severed his connection with another railroad, he shipped his household goods to Junction City, Boyle county, Ky., for the purpose of taking up his residence in that county. His family went to Jessamine county on a visit, and while they were there temporarily the intestate was acting as brakeman on the appellee railroad, and was killed in Nelson county, Ky. The deceased was not a land owner in Boyle county, nor does he seem to have had any tangible personal property at the time of his death; but there were debts and demands due him by persons domiciled in that county, and they were so due at the time the appellee qualified as administratrix of the decedent's estate. Her right to have qualified as administratrix in Boyle county depends upon the meaning of sections 3894 and 4849, Kentucky Statutes, which read as follows:

"Section 3894. 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. Wills shall be proved before and admitted to record by, the county court of the county of the 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."

The first part of section 4849 evidently relates to a testator where the county of his residence in the Commonwealth is known. The next part of the section relates to a resident of the Commonwealth, but whose place of residence therein is unknown. When this is the case if he devises land, then his will must be probated in the county where the land, or part thereof, lies; if land is not devised, then his will is to be probated in the county where he dies, or in the county wherein his estate, or part thereof, shall be: or, if there were any debts or demands owing to him by the person domiciled in that county, then the will may be probated in that county.

It is urged that the meaning of the section, "If [the decedent] had no known place of residence in this Commonwealth," has reference to a person who was a nonresident of the Commonwealth at the time of his death. The language of the section, taken as a whole, shows that it has reference to residents of the Commonwealth, but this is not an open question. Section 27, c. 106, 2 Stanton's Revised Statutes, is the same as section 4849, Kentucky Statutes. This court, in Thumb v. Gresham, 2 Metc., 306, adjudged that section referred to residents of the State. The case of Railroad Co. v. Brantley's Adm'r, 96 Ky., 308, (16 R. 691) 28 S. W., 477, was an action by a nonresident administrator of a nonresident decedent for damages resulting from his death; and this court held that the action could not be maintained by such nonresident administrator, because the damage sought to be recovered was not a debt due such decedent. The case of Brown's Adm'r v. Railroad Co., 97 Ky., 233, 305 (17 R. 145) (30 S. W., 639) W. 639, was an action by an administrator appointed in this State on the estate of a decedent who was a nonresident of the State at the time of his death, but he had no personal estate in Kentucky other than the demand given by the Kentucky Statutes to personal representatives of decedents who have been killed by negligence, etc. In that case the court, in discussing the question of the power of a county court in Kentucky to make the appointment of a personal representative (the same provisions were in the General Statutes as those under consideration), in substance, said: It may be that the claim in the action is not a debt due the decedent at the time of his death, nor is it, strictly speaking, a personal estate of the decedent; but, beyond the provisions of the General Statutes, the statute which gives the cause of action to an administrator appointed by the local courts for the purpose of maintaining the action implies the right of the court where the injury was inflicted and the death occurred to appoint a personal representative. And the court held that the county court of the county where the injury was done and where the man died had jurisdiction to make the appointment. It will be observed that this court, in the Brown case, did not adjudge that the county court where the decedent died had jurisdiction to appoint a personal representative because of ...