Moran v. Moran's Admr.
| Decision Date | 22 November 1916 |
| Citation | 172 Ky. 343 |
| Parties | Moran v. Moran's Administrator, et al. |
| Court | Kentucky Court of Appeals |
Appeal from Mason Circuit Court.
CHARLES A. DALY for appellant.
SLATTERY & REES for appellees.
On July 17th, 1915, Elisha Moran, who was domiciled in Mason county, Kentucky, died, intestate. His father and mother, both, had died, previous to him and he left no descendants surviving him. His only heirs at law were his brother, who is the appellant, W. L. Moran; Jennie Bush, a sister; Earl Moran, Everett Moran, Bruce Moran, Charles Moran, Harry Moran, Sudie Moran, Sally Moran and Bessie Moran, the children of a deceased brother, Darius Moran; Stella Downing, Cornelia Mackoy and Maud Osborne, the children of a deceased sister, Bettie Moran Downing; Bertha Ferris, only child of a deceased brother, Benjamin Moran; and J. R. Moran, W. T. Moran, Elisha Moran, Cornelia Gardener, Julia Henry and J. T. Moran, the children of a deceased brother, Robert Moran. The appellant, W. L. Moran, the only brother of deceased, who was alive, resided in Mason county. Earl, Everett, Bruce, Charles, Harry, Sudie, Sally and Bessie Moran, Stella Downing, Cornelia Mackoy and Maud Osborne all resided in Mason county. Jennie Bush resides in Boyd county. Bertha Ferris resides in Ohio; while J. R., W. T. and Elisha Moran, Cornelia Gardener, Julia Henry and J. T. Moran reside in Oklahoma. Sally Moran and Bessie Moran are infants. Cornelia Mackoy and Maud Osborne and Jennie Bush are married women. Bertha Ferris, Cornelia Gardener and Julia Henry are all married women and are non-residents of this state. J. R. Moran, W. T. Moran, Elisha Moran and J. T. Moran are, also, non-residents of this state. Thus, it will be seen that W. L. Moran, Earl Moran, Everett Moran, Bruce Moran, Charles Moran, Harry Moran, Sudie Moran and Stella Downing were the only ones of the heirs of decedent, Elisha Moran, who had the legal qualifications necessary to permit them to act as administrators of his estate.
On July 31st, the appellant, W. L. Moran, filed a formal application before the judge of the Mason county court to be appointed administrator of the decedent, and accompanied his application with an offer of sureties sufficient to make his bond, and, also, certain affidavits, by which were proven his legal qualifications for the office. None of the other heirs of decedent applied for letters of administration upon his estate, but upon the same day filed with the county court a written request, which was signed by all of those who were residents of Kentucky and by Bertha Ferris, who was a resident of Ohio, in which they requested the court to appoint the appellee, W. H. Rees, administrator of the estate. The court overruled the motion of appellant to be appointed administrator and over the objection of the appellant appointed the appellee, W. H. Rees, who immediately qualified as such. Thereafter on Monday, the second day of August, which was the first day of the regular term of the county court for that month, the appellant appeared in the county court and again moved the court to appoint him administrator of the estate and at the same time presented his bondsmen and affidavits showing his qualifications, and, also, moved the court to set aside the appointment of appellee. These motions were overruled and from the order of the court made on the 31st day of July, which appointed the appellee administrator of the decedent and refused the appointment of the appellant, and, also, from the order of the court made on the 2nd day of August overruling the motion of appellant to set aside the order appointing Rees administrator and to appoint appellant administrator of the estate, the appellant appealed to the circuit court. The case was heard in the circuit court and that court affirmed the judgment of the county court and dismissed the appeal of the appellant, and from this judgment an appeal was taken to this court.
The contention of appellant is, that he is the nearest of kin among the distributees of the decedent and possessed the legal qualifications to perform the duties of administrator of his estate, and that under the statute was entitled to be appointed as such, and that the courts, both circuit and county court, were in error in refusing his appointment. Upon the other hand, the appellee contends that the county court has a discretion to appoint either a distributee or a stranger, and that the appellant was not morally nor physically suitable or qualified to perform the duties of the office, and that he was furthermore disqualified on account of antipathy upon his part toward the other heirs of the decedent. Evidence was taken by both appellant and appellee by way of depositions, without objection as to the manner of making the proof. The appellant filed in the circuit court written exceptions to the depositions taken by the appellee, and to various questions and answers propounded to the different witnesses, but he failed to have the exceptions passed upon by the circuit court and hence upon appeal it must be considered that he waived the exceptions in the court, below, and the court having made no decision in regard to the exceptions and no exceptions being taken, therefore, to the decision of the court, the legality of the depositions and their contents are not now questions upon this appeal.
The statutes which control the appointment of administrators are Sections 3896 and 3897, Ky. Statutes. The first of the sections mentioned is as follows:
"The court having jurisdiction shall grant administration to the relations of the deceased who apply for the same, prefering the surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them who the court shall judge will best manage the estate."
The other section mentioned is as follows:
"If no such person apply for administration at the second county court from the death of an intestate, the court may grant administration to a creditor, or to any other person in the discretion of the court. . . . ."
The only kinsman of decedent, who was a distributee and who applied for letters of administration upon his estate, was the appellant. It will be observed that the statute limits the power of appointment by the court of a distributee, as an administrator of a decedent, to such of the distributees as may apply for such appointment. If there is no surviving husband or wife, the court must appoint an administrator for the estate of decedent from among the ones, who are next entitled to distribution, after the surviving husband or wife, and who may apply to the court for appointment. If more than one of those next entitled to distribution after the husband or wife apply, then the court shall appoint one or more of them, who the court shall adjudge will best manage the estate. Hence, if only one of the class next entitled to distribution shall apply, then the court must...
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