Nunn v. Hamilton

• Decision Date: 28 March 1930
• Citation: 233 Ky. 663,26 S.W.2d 526
• Parties: NUNN et al. v. HAMILTON.
• Court: Kentucky Court of Appeals

26 S.W.2d 526

233 Ky. 663

NUNN et al. v. HAMILTON.

Court of Appeals of Kentucky

March 28, 1930

Appeal from Circuit Court, Metcalfe County.

Proceedings by James A. Hamilton, Jr., for appointment as executor of the estate of James A. Hamilton, Sr., opposed by Mary Nunn and others. An order of the county court rejecting the application and appointing others as personal representatives was reversed by the circuit court, with directions to permit petitioner and another to qualify as executors, and from this judgment Mary Nunn and others, appointed as administratrices by the probate court, appeal, and petitioner cross-appeals from so much thereof as permitted the qualification of a coexecutor.

Judgment of circuit court affirmed.

A. J Thompson, of Edmonton, and Woodward, Hamilton & Hobson, of Louisville, for appellants.

John E Richardson, of Glasgow, J. W. Kinnaird, of Edmonton, V. H Baird, of Glasgow p>Page M. O. Scott, of Edmonton, and R. H. Crockett, of Franklin, Tenn., for appellee.

REES J.

James A. Hamilton, Sr., died March 26, 1929, a resident of Metcalfe county, Ky. and on April 22, 1929, his will was proven and admitted to record in the Metcalfe county court. The beneficiaries named in the will were his four children, the appellants, Mrs. Mary Nunn, Mrs. Nora Thompson, and Mrs. Ethel Davis, and the appellee, James A. Hamilton, Jr. The testator left an estate worth approximately $200,000. By the will James A. Hamilton, Jr., and Mrs. Mary Nunn were named as executors. On the day the will was probated the appellee appeared in open court and moved that he be appointed executor with the appellant Mrs. Mary Nunn, but the court refused to appoint him on the ground that he was a nonresident of the state of Kentucky, and, Mrs. Nunn having declined to serve as executrix, the court appointed the appellants, Mrs. Mary Nunn, Mrs. Nora Thompson, and Mrs. Ethel Davis, as administratrices with the will annexed of the estate of James A. Hamilton, Sr., deceased.

The appellee appealed from the order to the Metcalfe circuit court, and that court entered a judgment reversing the judgment of the county court and directing that the appellant Mrs. Mary Nunn, and the appellee, James A. Hamilton, Jr., be permitted to qualify as executors of the will of James A. Hamilton, Sr., by executing the proper bond. From this judgment Mrs. Nunn, Mrs. Thompson, and Mrs. Davis have appealed, and the appellee, James A. Hamilton, Jr., has taken a cross-appeal from so much of the judgment as permitted Mrs. Nunn to qualify as coexecutor.

Prior to 1910 the appellee, James A. Hamilton, Jr., resided at his father's home in Metcalfe county. In 1910 he married, and he and his wife continued to reside in Metcalfe county until 1919 when they moved to Warren county, where he bought a home and resided until 1922 when he sold all his property in Kentucky and purchased a farm in Tennessee to which he moved in the early part of 1923. In August, 1928, James A. Hamilton, Sr., suffered a stroke of paralysis, and from that time until his death on March 26, 1929, appellee spent most of the time at his father's home.

On April 22, 1929, when the will was probated, the appellee, in support of his motion to be permitted to qualify as executor of his father's will, filed the following affidavit:

"The affiant, J. A. Hamilton, Jr., states that he is now and has been all of his life an actual and bona fide resident of Metcalfe County, Kentucky. He states that while it is a fact that he has owned property in other parts of the country, yet he has never voted at any other place than in Metcalfe County, Kentucky, except in Warren County, Kentucky and that he has always considered Metcalfe County, Kentucky, as his home and his actual place of residence; that he has been temporarily absent from Metcalfe County, Kentucky, yet Metcalfe County, Kentucky, has always been his home, and his actual place of residence, and it is now his actual place of residence and expects to continue to make this state his residence.

J. A. Hamilton, Jr."

As heretofore stated, the county court declined to permit the appellee to qualify upon the ground that he was a nonresident of Kentucky. In reversing the judgment of the county court the chancellor, Hon. H. L. James, who acted as special judge in the absence of the regular judge who was disqualified to sit in the case, in a well-reasoned opinion, said in part:

"The main question presented, is whether or not a non-resident, under the circumstances of this case, may qualify as an executor. The will of the testator is supreme, and a Court is without authority to refuse appointment to the executor named by the will unless required so to do by the law or some prevailing rule of public policy. Berry v. Hamilton, 12 B. Mon. 191, 54 Am. Dec. 515; Holbrook v. Head, 6 S. W. 592, 9 Ky. Law Rep. 755; Worthington v. Worthington, 35 S.W. 113, 18 Ky. Law Rep. 62; Adams v. Readnour, 134 Ky. 230, 120 S.W. 279, 20 Ann. Cas. 833; 11 R. C. L. pages 31 and 43; Gatto v. Gatto, 198 Ky. 569, 250 S.W. 833.

To ascertain the prevailing rule of public policy, we must look to the Constitution, Statutes and decisions of our court of last resort. Westerfield-Bonte Co. v. Burnett, 176 Ky. 188, 195 S.W. 477; Eversole v. Eversole, 169 Ky. 796, 185 S.W. 487, L. R. A. 1916E, 593.

The Constitution is silent on the subject, and the only Statute which may directly affect the question is Section 3846 of the Kentucky Statutes. This Section provides:

'If a personal representative shall reside out of the state *** the county court shall remove him.'

Section 449 provides that the term 'personal representative' shall be construed to include executor and administrator. Section 460 provides that the rule of the common law, requiring the statutes in derogation thereof are to be strictly construed, shall not apply to this revision. This section [3846] in different form, first appeared in the Revised Statutes adopted in 1852 (c. 37, art. 1, § 19) and was taken from a Massachusetts revision. Then it was as follows:

'When any personal representative shall reside out of the state, or become insane, or shall after his qualification, become otherwise incapable to discharge his trust, the county court may, after citation, remove him.'

By an Act of January 29, 1863, that section was so amended as to include a guardian and to provide that if such personal representative or guardian be a non-resident of Kentucky, he might be brought before the Court by warning order. The section was carried into the General Statutes practically in its present form.

It will be noted that this section does not expressly forbid the appointment of a nonresident either as executor or administrator, and it may be said, that had the Legislature, when it adopted the Revised Statutes or the General Statutes or the Kentucky Statutes, intended that a person who had his legal residence in another state should under no circumstances be appointed by the Court as a personal representative, it could easily have said so. In Radford v. Radford, 5 Dana, 156, decided in 1837, where the County Court had refused to appoint as administratrix the widow who was a non-resident, the Court said:

'And certainly her non-residence was a sufficient objection to her. She may never become a resident of this State; and a Court of Kentucky may refuse to appoint a nonresident of this State the personal representative of a person who was domiciled here at the time of his death, and should, in fact, generally do so.'

In Young's Adm'r v. L. & N. R. R. Co., 121 Ky. 483, 89 S.W. 475, 28 Ky. Law Rep. 451, and Spayd's Adm'r v. Brown, 102 S.W. 823, 31 Ky. Law Rep. 438, the Court indicated that a non-resident could not be appointed as administrator but in neither case was the question directly involved. However, in Fishel v. Dixon, 212 Ky. 2, 278 S.W. 545, 546, this was the single question presented, and the Court said:

"'Can a nonresident of the state be appointed administrator of the estate of a decedent situated in Kentucky?" The answer is: "No."'

The opinion cited the statute as an 'implied prohibition' and the cases referred to above, together with Moran v. Moran's Adm'r, 172 Ky. 343, 189 S.W. 248, as the authority for its answer. In Moran v. Moran, the question did not arise and was only incidentally referred to.

We have been cited to no opinion from our Court of last resort and have found none, holding that a non-resident of the state, named by a resident testator, may not act as executor. In sister states where there is no express legislative prohibition, it is generally held that a non-resident may be so appointed. 11 R. C. L. 45; 23 Corpus Juris, 1025, and cases cited.

However, the opinion in the case of Fishel v. Dixon, is sufficient to show, and does show, that the prevailing rule of public policy in this state forbids the appointment of a non-resident as an administrator. Such a 'non-resident' is one who has his legal residence out of the state, and are we to conclude from this that the same rule applied to the appointment of a non-resident as executor? Are there any reasons why it should not be the same?

The law of wills is of ancient origin. The right to dispose of property by will was exercised by the Anglo-Saxons. After the conquest, disposition, because of the feudal system, was limited to personal property, but by the Statute of Wills, 32 and 34 Henry VIII, the right to dispose of two thirds of his real property was conferred on one qualified to make a will. In early times wills were established in the ecclesiastical courts; later probate courts were provided, and it was the duty of the named executor to establish the will. All persons capable of making wills and some others were capable of being made executo...