Rudolph v. Wetherington's Adm'r

• Decision Date: 23 April 1918
• Citation: 180 Ky. 271,202 S.W. 652
• Parties: RUDOLPH v. WETHERINGTON'S ADM'R ET AL.
• Court: Kentucky Court of Appeals

202 S.W. 652

180 Ky. 271

RUDOLPH v. WETHERINGTON'S ADM'R ET AL.

Court of Appeals of Kentucky.

April 23, 1918

Appeal from Circuit Court, Ballard County.

J. B Nichols, Bradshaw, Nichols & Mac-Donald, and A. M. Nichols all of Paducah, for appellant.

M. C Anderson, of Barlow, and Ed. Reesor, of Bandana, for appellees.

CLARKE J.

Mrs Nellie Wetherington, a resident of Arkansas, having formed and expressed an intention to remove to and become a citizen of Ballard county, Ky. in furtherance of that intention left her home in Arkansas with her personal belongings, on or about November 20, 1916, arriving in the city of Paducah, Ky. November 24th, where she died November 26, 1916, without having been in Ballard county.

It is agreed by the parties that:

She "was not the owner of, or interested in any way in, any real estate at the time of her death; that she, at the time of her death, owned money and personal property, not to exceed $450.00 in value, all of which she had with her in Paducah, McCracken county, Ky. at the time of her death. And it is also agreed that she died intestate, that no one was indebted to her at her death, but two insurance policies became due, upon her death, to her estate." Under sections 3894 and 4849, Kentucky Statutes, the jurisdiction to grant administration on the estate of a decedent is vested: First, in the county court of the county of his residence; second, if he had no known residence in this commonwealth, in the county where his land, if any, lies; and, third, if he owned no land, then "in the county where he died, or that wherein his estate, or part thereof, shall be, or where there may be any debt or demand owing to him."

As it is admitted intestate had no land and that no one was indebted to her, her administrator must have been named by the county court of the county where she died, or that wherein her estate was when she died, unless she had a known residence in this commonwealth. So, the question is narrowed to whether or not her residence was in Ballard county, the only ground upon which the jurisdiction of the Ballard county court could be sustained.

This question, upon very similar facts, was before this court in Boyd's Ex'r v. Commonwealth, 149 Ky. 764, 149 S.W. 1022, 42 L. R. A. (N. S.) 580, Ann. Cas. 1914B, 481, wherein numerous authorities were cited, including the following:

"In Dicey on the Conflict of Laws, at page 106, the author says: 'The only principle which can be laid down as governing all questions of domicile is this, that where a party is alleged to have abandoned his domicile of origin, and to have acquired a new one, it is necessary to show that there was both the factum and the animus. There must be the act, and there must be the intention. A new domicile is not acquired until there is not only a fixed intention of establishing a permanent residence in some other county, but until also this intention has been carried out by actual residence there.'

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