McFarland's Adm'r v. Louisville & N.R. Co.

• Decision Date: 30 October 1908
• Citation: 113 S.W. 82,130 Ky. 172
• Parties: McFARLAND'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

113 S.W. 82

130 Ky. 172

McFARLAND'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

October 30, 1908

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by Gillis McFarland's administrator against the Louisville & Nashville Railroad Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Johnson & Snyder, R. S. Rose, and T. Z. Morrow, for appellant.

Benjamin D. Warfield and Charles H. Moorman, for appellee.

CLAY C.

This is an action by W. W. McFarland, as administrator of Gillis McFarland, deceased, for damages for personal injuries resulting in the death of the latter.

Among other defenses the appellee, Louisville & Nashville Railroad Company, pleaded that at the time of his death the decedent Gillis McFarland, was a resident of Whitley county, Ky. and died domiciled therein; that thereafter, on the 15th day of August, 1904, the Whitley county court, at a term that day duly held, appointed Isabella McFarland administratrix of the estate of Gillis McFarland, deceased; that she accepted the appointment, and gave bond as required by law, and thereupon took the oath as required by law in such cases, and was granted by the court letters of administration on the estate of said Gillis McFarland; that thereafter, while she was acting as such administratrix, she instituted an action in the Whitley circuit court against the defendant for damages on account of the death of said Gillis McFarland; that while said action was still pending in that court, and she was still acting as administratrix, the cause of action was duly adjusted and compromised and settled between her and the defendant by a contract, by the terms of which she agreed to accept from the defendant the sum of $200 in full compromise and satisfaction of the cause of action so set out in the petition; that said sum was then and there paid to her by the defendant, and was accepted by her as such administratrix in full compromise, settlement, and satisfaction of her cause of action, and of any and all claim which the estate of Gillis McFarland had against the defendant for damages on account of his death; that the defendant pleaded and relied upon said settlement, compromise, and payment as a bar to this action. In reply to the above paragraph of the defendant's answer, the plaintiff admitted the residence of decedent, the qualification of Isabella McFarland as administratrix, and the settlement with said Isabella as alleged in the defendant's answer; but plaintiff alleged that the county court order appointing said Isabella administratrix, as well as the order of that court qualifying her as such administratrix, was absolutely null and void, because said Isabella was not at the time of her appointment and qualification as such administratrix of said Gillis McFarland, or at the time of the settlement of the suit brought by her as administratrix of the estate of Gillis McFarland against the defendant, or at the time of the acceptance of the $200, the sum agreed on in said settlement or at any other time, the surviving wife of said Gillis McFarland, nor was she in any wise related to him, nor was she next after such surviving wife, or in any wise or at all entitled to a distribution of his estate or any part of it. Plaintiff further alleged that the appointment and qualification of said Isabella McFarland as administratrix of said Gillis McFarland occurred within less than 60 days, and before the second county court in Whitley county, after the death of Gillis McFarland; that said county court was without jurisdiction to make said appointment, and the appointment was, for that reason, null and void; and being, for the reason stated, and also for the reason that said appointment was in fraud of the rights of Nola McFarland and the infant child of the decedent, Hannah McFarland, null and void, it conferred no rights on said Isabella to sue on, compromise or settle any claim for or against the estate of the decedent with the defendant or any one else, or to administer any estate left by him in Whitley county or elsewhere. Plaintiff further pleaded that on the 17th day of September, 1897, at South McAlester, Ind. T., he, the said Gillis McFarland, was duly married to one Nola Morten, who thereupon became Nola McFarland, his lawful wife, and from whom he was never divorced, and that she, said Nola McFarland, was living at the time of the death of said Gillis McFarland, her husband that, at the time of the death of Gillis McFarland, Nola McFarland was at Huntington, Ark., and had an infant child, Hannah McFarland, the issue of her marriage with Gillis McFarland, and as soon as she learned of the death of her husband, which was not until after the appointment of Isabella McFarland, and after the compromise pleaded by defendant, she came to Kentucky, and on the 12th day of July, 1905, appeared in the Whitley county court and moved said court to remove Isabella McFarland as administratrix, and for cause shown said Isabella was then removed, and said Nola then in writing waived her right to be appointed administratrix of her husband and requested that plaintiff, who is the father of the decedent, be appointed in her stead, which was done. By another paragraph in the reply plaintiff pleaded that all the foregoing facts were known to the defendant at the time of the settlement and payment of the money to Isabella McFarland, or that such knowledge was easily accessible to it. By rejoinder the defendant put in...