Menifee, Committee v. Ends

• Decision Date: 04 May 1895
• Citation: 97 Ky. 388
• Parties: Menifee, Committee v. Ends.
• Court: Kentucky Court of Appeals

Page 388

97 Ky. 388

Menifee, Committee v. Ends.

Court of Appeals of Kentucky.

May 4, 1895.

APPEAL FROM LINCOLN CIRCUIT COURT.

W. H. MILLER, FOR APPELLANT MENIFEE COMMITTEE AND J. S. OWSLEY, JR., COMMONWEALTH'S ATTORNEY.

R. C. WARREN AND W. G. WELCH FOR APPELLEE.

JUDGE EASTIN DELIVERED THE OPINION OF THE COURT.

On January 16, 1894, a warrant was issued by the judge of the Lincoln County Court, reciting, among other things, that there had been filed with him, by the county attorney of that county, in the absence of the Commonwealth's attorney of the district, information that Lucy Ann Ends, the appellee, was, by reason of old age, of such imbecile and unsound mind as to render her incompetent to manage her estate. The warrant was addressed to the sheriff, and commanded him to bring appellee into court on the next day, January 17th, that the matter might be inquired into. The writ was executed by the officer, and appellee being in court on the day fixed, a jury was impaneled and a verdict returned to the effect that appellee was "incompetent to take care of her estate of amount $2,082.20," and asking that a committee be appointed to take charge of it.

The county court thereupon entered a judgment in conformity with the verdict, and subsequently appointed appellant as the committee of appellee. It appears that the information on which the warrant was based consisted of an affidavit made by two of the daughters of appellee to the effect that, by reason of old age, their mother was incompetent to manage her estate.

On the 16th day of February, 1894, one Thomas Ends, a son of appellee, produced and filed in the circuit court of Lincoln county, a transcript of the above-mentioned proceedings in the county court, together with his own affidavit, in which he stated, among other things, that appellee was a person of sound mind and perfectly competent to manage her estate, that no suggestion of incompetency on her part had ever been heard of until a very short time before, when she had come into possession of the sum of $2,492.20, as a pensioner of the United States, and that the inquest and judgment of the county court, adjudging her to be incompetent, were false and fraudulent, and asking that the matter be inquired into. Appellant, being served with process, appeared in this proceeding in the circuit court, and after filing a general demurrer, and a motion to dismiss the proceeding, both of which were overruled, filed an answer on the 7th day of March, 1894. A jury was then impaneled to try the issue, but after hearing the evidence and arguments, and considering the case under the instructions of the court, reported that they could not agree upon a verdict, and were discharged by the court on March 9, 1894.

Appellee then gave notice in writing to appellant that she would, on the following day, move the court, upon the record of the proceedings in the Lincoln County Court, wherein she had been adjudged to be incompetent to manage her estate, and wherein appellant had been appointed as her committee, to vacate and set aside said orders, and said motion coming on to be heard on March 10, 1894, over the objection of appellant, it was in substance adjudged by the circuit court that the county court acquired no jurisdiction of the matters involved, by the affidavit and warrant referred to, that the verdict of the jury in that court, and the judgment based thereon, were null and void, and that appellant, as committee, should restore to appellee at once all money and property which had come to his hands by virtue of his appointment as such, to all of which appellant excepted and prayed an appeal, which prayer was refused by the court below, but subsequently an appeal from said judgment was granted by the clerk of the court, and the matter is thus brought before us for consideration.

It seems to us unnecessary, in arriving at a correct solution of this controversy, to consider in detail all the objections urged by appellant and ...