Philpot's Ex'x v. Boyd

• Decision Date: 18 October 1938
• Citation: 120 S.W.2d 747,275 Ky. 39
• Parties: PHILPOT'S EX'X v. BOYD et al.
• Court: Kentucky Court of Appeals

120 S.W.2d 747

275 Ky. 39

PHILPOT'S EX'X v. BOYD et al.

Court of Appeals of Kentucky

October 18, 1938

Appeal from Circuit Court, Bell County.

Suit by Earl Boyd against Norma Philpot, executrix of the estate of E. Philpot, deceased, and another to surcharge a guardian's settlement filed by decedent in his lifetime. From a judgment dismissing the petition as to the other defendants and holding the named defendant liable as executrix, the executrix appeals.

Reversed with directions.

H. L Bryant, of Pineville, for appellant.

Jeffries & Blackburn, of Pineville, for appellees.

REES Justice.

This is an action to surcharge a guardian's settlement.

E Philpot qualified in the Bell county court as guardian of Earl Boyd December 9, 1919, and executed bond in the penal sum of $600 with James Howard as surety thereon. Earl Boyd was born March 21, 1906, and, consequently, was 13 years of age when Philpot qualified as his guardian. On September 8 1926, Philpot's final settlement as guardian of Earl Boyd was recorded in the Bell county court. The settlement showed receipts of $1,643, and disbursements of $1,642.60. Earl Boyd arrived at the age of 21 years March 21, 1927. Philpot died in December, 1932, leaving a will in which he appointed Norma Philpot, his wife, executrix, and devised to her all of his estate. This suit to surcharge the settlement and to settle the estate of E. Philpot was brought March 19, 1934. Norma Philpot, executrix and sole devisee under the will of her husband, and James Howard, surety on the guardian's bond, were made defendants. It was alleged in the petition that during the year 1923 there came into the hands of E. Philpot, as guardian of plaintiff, Earl Boyd, the sum of $2,000, which was the compensation paid for the accidental death of the plaintiff's father, Joe Boyd, and that E. Philpot, as guardian, paid out only $1,105, leaving $895 due the plaintiff, with interest thereon from March 21, 1927, his 21st birthday. It was also alleged that the settlement filed by E. Philpot in the Bell county court, purporting to be the final settlement of his accounts as guardian, was false, fraudulent, and untrue, except that the plaintiff admitted the total amount legally paid out and distributed by E. Philpot as such guardian was the sum of $1,105 and no more. The defendant, Norma Philpot, filed an answer, the first paragraph of which was a traverse. In the second paragraph she alleged that E. Philpot left no estate above the exemptions allowed to her by law as his widow, and the third paragraph of her answer was a plea of limitations. In a separate answer, James Howard, the surety on the guardian's bond, plead and relied upon the statute of limitations as a bar to the action. His plea of limitations was sustained, and the petition dismissed as to him. Norma Philpot's plea of limitations was disallowed, and judgment for the sum of $895, with 6 per cent. interest thereon from March 26, 1927, was rendered against her as executrix. The judgment further provided that "The plaintiffs are entitled to recover in satisfaction of this judgment from the defendant, Norma Philpot, all monies or property which she received from the estate of said Ed Philpot, deceased, either as Executrix or as Devisee under his will, and that suit may hereafter be brought against her for a settlement of said Ed Philpot's estate and for a recovery and foreclosure of any assets which came to her hands from said estate."

Considerable proof was heard, but it fails to show the exact amount of money received by the guardian. It seems that Joe Boyd, father of Earl Boyd, died in 1918 from injuries received in an accident while he was employed in a coal mine. A claim was filed with the Workmen's Compensation Board, which awarded compensation in the sum of $4,000, of which $2,000 was awarded to Joe Boyd's widow and $2,000 to his infant son, Earl Boyd. After the weekly payments had been made for a period of time not disclosed by the record, the future payments of compensation were commuted to a lump sum pursuant to the provisions of section 4907 of the Kentucky Statutes. The evidence does not disclose the amount of the commuted sum, but necessarily, it was less than the amount of the award, $2,000. It also appears that someone other than E. Philpot qualified as guardian of Earl Boyd prior to December, 1919, and that he turned over the funds in his hands to E. Philpot after the latter qualified as guardian. It is admitted that the first guardian deducted his commissions and expenses, but the amount of these deductions is not disclosed. It is clear from the evidence, however, that E. Philpot, as guardian, received considerably less than $2,000. We deem it unnecessary, however, to discuss the evidence in detail, since we have concluded that the appellant's plea of limitations should have been sustained.

Appellee contends that the 15-year statute of limitations applies, and he cites section 2514 of the Kentucky Statutes which provides that an action upon the official bond of a personal representative, guardian, committee, or trustee...