Riggs v. Rankins' Ex'r

• Decision Date: 07 May 1937
• Citation: 268 Ky. 390,105 S.W.2d 167
• Parties: RIGGS et al. v. RANKINS' EX'R et al.
• Court: Kentucky Court of Appeals

105 S.W.2d 167

268 Ky. 390

RIGGS et al. v. RANKINS' EX'R et al.

Court of Appeals of Kentucky

May 7, 1937

Appeal from Circuit Court, Clark County.

Action by Nettie Riggs and others against Larue Rankins executor and others. From a judgment sustaining demurrers to the amended petition and dismissing the amended petition, plaintiffs appeal.

Affirmed.

M. C Redwine, of Winchester, for appellants.

Rodney Haggard, of Winchester, for appellees.

RATLIFF Chief Justice.

Appellants plaintiffs below, brought this suit in the Clark circuit court to recover of the appellees the sum of $500 under the alleged will of Larue Rankin, who died January 9, 1934. No certified or otherwise authenticated copy of the will appears in the record, and we have only the allegations of plaintiffs' petition and what purports to be a copy of the will, and from these documents it appears that by the terms of the alleged will dated April 25, 1917, decedent Larue Rankin, gave and devised all her property to her niece Elizabeth Keytt Bush (with certain conditions and contingencies, which are not involved or in issue in this case). Decedent named James Fox and Claude Shimfessel executors of her will, but later, by a codicil dated February 11, 1925, she canceled and withdrew from her original will the names of Fox and Shimfessel as executors and named in their stead H. M. Scott, husband of Elizabeth Keytt Bush, executor of her will. It appears, however, that Scott failed to qualify as executor and no administrator with the will annexed was appointed, nor any administration had upon the estate of the decedent. By another codicil dated January 3, 1933, decedent modified her original will and devised to her brother, A. R. Rankin, the sum of $500 absolutely and directed that said sum be paid to him soon after her death as possible. A. R. Rankin died December 16, 1933, or about twenty-five days before the death of the decedent, Larue Rankin, leaving surviving him two children, who are the appellants in this action, and in May, 1935, they brought this action for the purpose stated above.

Plaintiffs' petition sets out the terms of the will and the deaths of Larue Rankin and A. R. Rankin, respectively, and alleged that on account of the death of their father, A. R. Rankin, who predeceased Larue Rankin, all rights and privileges in and to the said bequest of $500 descended to and is now vested in the plaintiffs and that the defendant H. M. Scott is the husband of Keytt Scott, the same person mentioned in the will and named as executor thereof, but that Scott did not qualify as executor, but should have done so and an administrator with the will annexed should be appointed and required to qualify and administer upon the estate of the decedent, Larue Rankin, who died the owner of property in Clark county which was the only property owned by her at the time of her death. They further alleged that the defendants are nonresidents of Kentucky and reside in Lebanon, Ohio, and they made the usual allegations for a warning order which was issued, and defendants are only constructively before the court. They also alleged that the defendants have taken possession of the property of decedent, Larue Rankin, and are claiming to be the owners of same to the exclusion of plaintiffs; that they have a right to $500 of the property; and that the defendants are wrongfully withholding the said legacy and bequest of said amount in violation of the rights of plaintiffs. They made the usual allegations for an attachment on the ground that defendants are nonresidents and an order of attachment was issued and Wilbert Berryman of Clark county, Ky. an alleged debtor of the estate of Larue Rankin, was summoned as garnishee. They prayed judgment against defendants for...