Richardson's Adm'r v. Morgan

• Decision Date: 04 March 1930
• Citation: 233 Ky. 540,26 S.W.2d 32
• Parties: RICHARDSON'S ADM'R v. MORGAN et al.
• Court: Kentucky Court of Appeals

26 S.W.2d 32

233 Ky. 540

RICHARDSON'S ADM'R v. MORGAN et al.

Court of Appeals of Kentucky

March 4, 1930

Rehearing Denied April 22, 1930.

Appeal from Circuit Court, Daviess County.

Action by Thomas A. Morgan's administrator against Thomas C Morgan, Bettie M. Richardson and others for the settlement of an estate. The claim of Bettie M. Richardson was rejected and from that judgment the Fidelity & Columbia Trust Company who was appointed her administrator after her death pending a proceeding, appeals.

Reversed and remanded, with directions.

Lavega Clements, of Owensboro, for appellant.

F. A Roby and L. P. Tanner, both of Owensboro, for appellees.

CLAY J.

In the month of February, 1917, Thomas A. Morgan died testate and a resident of Daviess county, and during the same month his will was duly probated. In addition to some personal property of no great value, he owned a farm consisting of about 100 acres, and worth about $6,000. He bequeathed to his three maiden sisters, Ellen S., Lou S., and Annie R. Morgan, and to the survivor, the sum of $300 a year to be paid out of his estate. The balance of his estate he devised and bequeathed to his wife, Fannie C. Morgan, during her life, and provided that his land should not be sold until after the death of his wife and his three sisters. He further provided that, after the death of his wife and his three sisters above mentioned, his estate should go to his three sons, Thomas C., Francis, and Robert C. Morgan. The Central Trust Company of Owensboro was appointed executor, but declined to act. Thereupon R. M. Stuart was appointed and qualified as administrator with the will annexed. The administrator took charge of the farm, rented it out, and paid the proceeds to the three sisters until the death of the last survivor on June 22, 1927.

On January --, 1889, the testator, Thomas A. Morgan, executed and delivered to his sister, Bettie M. Richardson, his promissory note for $1,000, payable on demand with interest from date. In the month of January, 1928, Bettie M. Richardson presented to the administrator the note supported by proper affidavit, and demanded payment, with interest.

On June 9, 1928, the administrator brought this action against the devisees, Thomas C.

Morgan, Francis Morgan, and Robert C. Morgan, and against Bettie M. Richardson, for a settlement of the estate. In addition to the foregoing facts, he alleged that Bettie M. Richardson was the only creditor known to him, that her claim amounted to about $1,900, and that it would be necessary to sell the real estate in order to pay her claim. He asked that the cause be referred to the master commissioner to ascertain and report the amount of debts against the estate, and to settle his accounts as administrator, and also asked that the land be sold for the payment of debts and costs of administration, and that the balance be distributed between the defendants, Thomas C., Francis, and Robert C. Morgan.

Bettie M. Richardson filed an answer setting up the note in terms, and alleging that no part of the principal of the note had ever been paid, but that 23 annual installments of interest of $60 each had been paid on the note, paying the interest up to January 1, 1913, and that the last payment of interest was made in February, 1915. She further alleged that during the lifetime of the decedent she did not demand payment and did not demand payment of the principal sum until after the death of decedent and the qualification of Stuart as administrator of the will annexed. She further pleaded that she presented the note in the month of January, 1928, accompanied by the affidavit proving said claim as required by law, and demanded payment thereof. On October 8, 1928, the chancellor entered an order allowing the claim. Subsequently that order was set aside. In the meantime Bettie M. Richardson died, and the Fidelity & Columbia Trust Company was appointed her administrator, and the action proceeded in its name. The testator's sons filed exceptions to the claim, and, after hearing evidence on the question, the claim was rejected by the chancellor. From that judgment this appeal is prosecuted.

In view of our conclusion as to the merits of the claim, we deem it unnecessary to determine whether or not the first order allowing the claim was one that the court might set aside at a subsequent term. The exceptions challenge the claim on three grounds: (1) No consideration; (2) limitation; (3) laches.

1. A promissory note imports a...