Phillips v. Hundley

• Decision Date: 04 November 1909
• Citation: 135 Ky. 269,122 S.W. 147
• Parties: PHILLIPS v. HUNDLEY et al.
• Court: Kentucky Court of Appeals

122 S.W. 147

135 Ky. 269

PHILLIPS v. HUNDLEY et al.

Court of Appeals of Kentucky.

November 4, 1909

Appeal from Circuit Court, Marion County.

"To be officially reported."

Proceedings relative to appointment of an administrator with the will annexed of J. G. Phillips, deceased. From a judgment of the circuit court dismissing an appeal from the county court Bird Burton Phillips appeals; E. N. Hundley and others being the appellees. Affirmed.

H. P Cooper and Lindsay & Edelen, for appellant.

W. W Spalding, W. C. McChord, and Samuel Avritt, for appellees.

CARROLL J.

J. G Phillips died testate in Marion county in December, 1907. In his original will he nominated E. N. Hundley as executor, but by a codicil John B. Phillips and Owen D. Thomas were substituted as executors in place of Hundley. The decedent left surviving him his widow and four children; one of the children being the appellant, Bird Burton Phillips. The first regular county court day after the death of Mr. Phillips occurred on January 6, 1908. The county court that convened on this day was adjourned until January 10th, when the executors Thomas and Phillips offered the will for probate to which Hundley objected. For various reasons not necessary to mention the disposition of the case was continued until January 22d, when the county court met and probated the will; all opposition to it having been withdrawn. After the probate the nominated executors stated to the court that, if W. C. Rogers and J. A. Kelly were appointed administrators with the will annexed, they would relinquish their right to qualify. In this arrangement the widow and children, except appellant, also concurred. Thereupon the appellant demanded the right to be appointed administratrix, but the court appointed Rogers and Kelly, and on that day they qualified and entered upon the discharge of their duties. The record shows that when the parties appeared in court on the 22d day of January, and announced their desire that Kelly and Rogers be appointed, "Bird Burton Phillips, a daughter of J. G. Phillips, deceased, thereupon by attorney demanded that she be appointed and qualified as administratrix with the will annexed in lieu of the said J. A. Kelly and W. C. Rogers, and in lieu of all other persons," which motion the court overruled; and on the same day the following order was entered: "In the Matter of the Estate of J. G. Phillips. Bird Burton Phillips by attorney moved the court to set aside so much of the order this day entered as appoints J. A. Kelly and W. C. Rogers administrators with the will annexed of J. G. Phillips, and refused to appoint her, Bird Phillips, as a void order; and, the court being advised, overruled said motion, to which Bird Burton Phillips objected and excepted, and prayed an appeal to the circuit court." The county court record also shows that on February 3, 1908, which was the first day of the second regular term of the county court after the death of Mr. Phillips, the following order was entered: "In the Matter of the Estate of James G. Phillips. This day came Miss Bird Phillips, by attorney, and moved the court to appoint her administratrix with the will annexed of the estate of her father J. G. Phillips, deceased. The court, for reasons sufficient to itself, declined to take action of any kind upon said motion." And again, on the 2d day of March, 1908, Miss Phillips appeared in court, and renewed her motion, which was continued until March 11, 1908. On May 4, 1908, Miss Phillips filed her affidavit in the county court, setting out her qualifications for and right to the office of administratrix, and "moved the court to set aside as void the former order of this court appointing W. C. Rogers and J. A. Kelly as administrators of the estate of her father, J. G. Phillips, and to appoint her as administratrix of her said father's estate with the will annexed; and the court, being sufficiently advised, overruled each of said motions, and on account of the said former appointment refused to grant letters of administration to Bird Phillips, to all of which Bird Phillips objected and excepted and prayed an appeal to the Marion circuit court, which is granted." On May 26th Miss Phillips filed and perfected her appeal in the circuit court, and when the case came up for hearing, the appellees moved to dismiss the appeal, because it was not...