Nolty's Adm'r v. Fultz
| Decision Date | 29 November 1935 |
| Citation | 88 S.W.2d 35,261 Ky. 516 |
| Parties | NOLTY'S ADM'R v. FULTZ. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Carter County.
Suit by William Nolty's Administrator against Virginia C. Fultz and another. Judgment for named defendant, and plaintiff appeals.
Reversed and a new trial awarded.
Jesse K. Lewis, of Grayson, and W. J. Fields, of Olive Hill, for appellant.
R. C Littleton and A. C. Jarvis, both of Grayson, for appellee.
DRURY Commissioner.
This is an appeal from an unsuccessful effort by the administrator of William Nolty to recover money and other property alleged to belong to the estate of said intestate.
The Facts.
On January 31, 1933, William Nolty died in his 79th year unmarried, intestate, and without issue, and under the statute his estate descended as follows: One-fourth to his sister, Dora Kotcamp, one-fourth to his sister, Kate Probst, one-fourth to the children of his deceased sister, Anna Hexagon, one-fourth to the children of his deceased brother, Henry Nolty.
On September 25, 1933, an administrator of his estate was appointed, and this appeal is the result of an unsuccessful effort of that administrator to recover a portion of the old man's estate which is now in the hands of the appellee, Kate Fultz.
William Nolty had been a very industrious, frugal, eccentric, and miserly man, who had lived alone in a cabin near the railroad in Lewis county, Ky.
On January 1, 1933, one of his neighbors found him in his cabin seriously ill, and at his request this neighbor on that day took him to the home of his niece, Kate Fultz, in Carter county, and there he remained until he died.
His relatives believed him to be very wealthy and doubtlessly his death aroused in them great expectations. Kate Fultz took possession of everything the old man had, and to the inquiries of his relatives about his estate, she answered: "He didn't leave anything."
On October 2, 1933, his administrator filed this suit in equity against Kate Fultz in which he charged she had concealed and embezzled the old man's money. This suit was in the nature of a bill of discovery, and to it the administrator attached interrogatories addressed to Kate Fultz and her codefendant, the First National Bank of Grayson.
In her answer to the interrogatories, Mrs. Fultz asserted that on the day he came to her home the old man gave her $4,050, which she since has had, and in her answers to said interrogatories she did not confine herself to simply responding to the questions propounded, but went far afield and gave answers and detailed happenings, conversations, and occurrences with the deceased, William Nolty, concerning which she was not ordinarily a competent witness.
The cause was heard by a jury which returned a verdict for the defendant. The judgment entered on that verdict is proper unless some error was committed.
The Trial.
The principal errors of the court of which the administrator is complaining occurred in the admission of evidence.
Since she had admitted in her answer the receipt of this money from the old man, the burden was on Mrs. Fultz to account for the retention of it; therefore, she had to come forward with evidence to justify such retention to avoid a judgment against her. She did not offer to take the stand herself, but offered, and over the objection and exceptions of the plaintiff, was allowed by the court to read to the jury the interrogatories that had been propounded to her and her answers to them. The administrator had on that day filed a written motion to strike, from the answers made by Mrs. Fultz to the interrogatories, those parts which he contended were not responsive to them because they violated section 606 (2) of the Civil Code of Practice, as she was testifying for herself concerning a transaction and conversation with the plaintiff's intestate. The court overruled this motion and the administrator excepted. Further, during the reading of these interrogatories and answers,...
To continue reading
Request your trial
-
Cleveland Clinic Foundation v. Humphrys
...317; Stream v. Barnard, 120 Ohio St. 206, 165 N.E. 727, 64 A.L.R. 1144; Woodyard v. Sayre, 90 W.Va. 547, 111 S.E. 313; Nolty's Adm'r v. Fultz, 261 Ky. 516, 88 S.W.2d 35; Prince v. Abersold, 123 Ohio St. 464, 175 N.E. 862; Grissom v. Sternberger, 4 Cir., 10 F.2d The defendants waived the dis......
-
Mutual Life Ins. Co. v. Green, 195.
...15 S.W.2d 511; Coy v. Pursifull, 249 Ky. 57, 60 S.W.2d 93; McCoy v. Ferguson, 249 Ky. 334, 60 S.W.2d 931, 90 A.L.R. 891; Nolty's Adm'r v. Fultz, 261 Ky. 516, 88 S. W.2d 35; Nolty v. Fultz, 277 Ky. 49, 125 S.W.2d 749; Hull v. Simon, 278 Ky. 442, 128 S.W.2d Counsel for Margaret and Mabel Gree......
-
Carbide & Carbon Chemicals Corp. v. Cook
... ... record any facts to which he had previously testified ... Nolty's Adm'r v. Fultz, 261 Ky. 516, 88 ... S.W.2d 35 ... The ... appellee had an opportunity to ... ...
-
Johnson's ex'R. v. Wilkerson
...case the rule was properly applied in relation to the $450, which the defendants admitted came into their possession. Nolty's Adm'r v. Fultz, 261 Ky. 516, 88 S.W. (2d) 35. As to the balance of the money, the evidence is that the deceased received it, not the defendants. The fact that she wa......