Salyer v. Consolidation Coal Co.

• Decision Date: 08 January 1918
• Docket Number: 3076.
• Citation: 246 F. 794
• Parties: SALYER v. CONSOLIDATION COAL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

246 F. 794

SALYER v. CONSOLIDATION COAL CO.

No. 3076.

United States Court of Appeals, Sixth Circuit.

January 8, 1918

E. J Picklesimer and Roscoe Vanover, both of Pikeville, Ky., for plaintiff in error.

Edward C. O'Rear, of Frankfort, Ky. (Allie W. Young, of Morehead, Ky., of counsel), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

Reed was killed July 3, 1915, as the result of an injury he received while working in the coal mine of the Consolidation Company. He was without widow, child, or father, and his mother was appointed administratrix by the appropriate court of probate (the county court) on August 3, 1915. As administratrix, she brought, in a state court, this action to recover the damages for his death, alleging negligence by the company. The defendant removed the case to the court below. Plaintiff was a married woman when appointed. Section 3845 of the Kentucky Statutes provides:

'A married woman shall not be appointed executor or administrator. The marriage of a woman acting as such shall avoid the trust, and her husband shall not act as such in right of the wife.'

After a demurrer had been interposed and overruled, the defendant, on December 8, 1916, answered and alleged that, because plaintiff had been and was a married woman, her appointment as administratrix was void, and that she had no capacity to bring or maintain this suit. Thereupon she went before the county court and resigned, and that court, on January 11 1917, appointed E. J. Picklesimer as administrator. In April 1917, she filed a petition in the court below showing that she had always been the sole beneficiary under the estate of her son, and that Picklesimer had succeeded her as administrator as above, and praying that he be permitted to prosecute this suit as such administrator. At the same time, Picklesimer filed an intervening petition alleging the same facts and asking that he be permitted to prosecute and carry on this suit in his name as administrator and for the benefit of the mother, Mrs. Salyer, sole beneficiary of the estate. Upon these petitions, the court ruled that the appointment of the mother as administratrix was void, that she had no right to begin the suit, that there was nothing to amend, and that the statute of limitations prevented any action equivalent to the beginning of a new suit. Accordingly the suit was finally dismissed, and this proceeding in error was brought.

The only applicable statute of limitations is section 2516 of the Kentucky Statutes, which provides that actions for injuries to the person shall be brought within one year after the cause of action accrues. The action for death, given by section 6 of the Kentucky Statutes, might not necessarily be thought an action 'for injury to the person'; but the one-year limitation has been held to apply thereto. Carden v. Railroad, 101 Ky. 113, 39 S.W. 1027. The court below felt bound to, and did, follow the decision of the Kentucky Court of Appeals in Fentzka's Adm'r v. Warwick Co., 162 Ky. 580, 172 S.W. 1060. In that case it appeared that, within three months after the death, the relative first entitled to administration had renounced and asked that the estate be 'referred to' the public administrator; and this was done. The public administrator, thus prematurely appointed, brought suit on account of his decedent's death. Later, and more than one year after the death, the premature character of this appointment was observed, and a second appointment or order of reference to the same public administrator was made. He thereupon asked leave to be substituted, in his special capacity under his second appointment, in the pending suit in which he had declared under his first appointment. The court refused this permission, in an opinion which concludes that the first appointment was without lawful authority and was void, and therefrom seems to draw two inferences: First, that there could be no amendment because the first action was a nullity and there was nothing to amend; and, second, that since no action by the rightful administrator had been commenced within the year, all right of action was barred. Clearly, in so far as the decision in the Fentzka Case adjudged the construction and effect of the statute forbidding a married woman to be an administrator and of the statute of limitations, it is binding upon the federal courts; and it is equally clear that, in so far as the case determines the question of the right to amend the pleadings in a pending action, it does not affect the federal courts, which must construe and apply for themselves the federal statute of amendments. R.S. Sec. 954 (U.S. Comp. St. Sec. 1591). Truckee Co. v. Benner (C.C.A. 9) 211 F. 79, 81, 127 C.C.A. 503. See also cases cited at page 3184, note 17, U.S. Comp. St. of 1916.

If we assume that the Fentzka Case should be considered as interpreting the Kentucky statute of limitations to the effect that a suit commenced by an administrator whose appointment is void is no suit at all, and that, in order to prevent the bar of the statute, a suit must be commenced within the year by an administrator whose appointment is not void, and if, therefore, we assume that the federal courts are bound by this decision as the law of the state on that point, the question remains, 'Was the appointment of the plaintiff as administrator void, or did it give her at least color of title to the office? ' This question has not been expressly decided in Kentucky, but a review of the decisions in the state indicates to us quite clearly what must be considered the Kentucky rule. In such an examination, we must bear in mind that the word 'void' is often loosely used, and perhaps no court is exempt from just criticism in this particular; and it follows that, in cases where the precise distinction between 'void' and 'voidable' is not controlling, the use of the broader word does not end inquiry as to the force of the distinction.

The statute says that a married woman shall not be appointed executor; it does not say that the appointment, if made, shall be void. This inference is thought to be supported by reference to the other part of the same section, which declares that the marriage of a woman administrator 'shall avoid the trust.' The latter clause is construed, so far as we find, in only two cases: Young v. Duhme, 4 Metc. (Ky.) 239, and Tribble's Ex'rs v. Broadus, 23 S.W. 349. In the first of these cases, it appeared that administration had been granted to the widow of the deceased, that after three years she had married, and that she had completed the settlement of the estate according to accounts approved by the appointing court. Whether this was before or after her marriage does not appear. Four years after her marriage, a creditor of the deceased brought suit against the administratrix for the purpose of establishing a disputed demand. The court held that this suit could not be maintained, and said that by defendant's marriage she had ceased to be so the personal representative of the deceased that suit against her could be effective to adjudicate the demand. This is plainly far short of holding that she had become an entire stranger to the estate and did not represent it to any extent or for any purpose. In the second case, after the marriage of the executrix, an action was brought by the heirs to determine her right to continue as executrix. The only question involved was whether her powers under the will were those of an executrix or those of a trustee. The broader question of whether her office became by her marriage utterly vacant was not considered. ^[1] This question might be presented in many aspects; for example, if she continued with the consent of everybody to act as executor and misappropriated the assets, would the sureties on her official bond escape liability because her act had been that of a stranger to the estate? It is enough to say that the Kentucky Court of Appeals has never announced any such extreme rule

The appointment of administrators in the usual case is governed by sections 3896 and 3897, which, so far as now pertinent are given in the margin. ^[2] It is the plain effect of these sections that, until the end of the second county court, the next of kin who desire administration are absolutely entitled thereto, and in their order as distributees, and that until the expiration of this time, the court has no right to appoint any one else. It is not apparent why the lack of power to appoint a creditor or a stranger, until after the second county court, is not as complete as the lack of power to refer to a public administrator before the end of the three months, or why the time prohibition against such appointment of a creditor is not as imperative as the personal prohibition against the appointment of a married woman. However, it is clearly established that an appointment which, under these sections is forbidden because premature, is not void but is only erroneous. The question first arose in Buckner's Adm'rs v. Railroad, 120 Ky. 600, 87 S.W. 777. The widow, who claimed to be next of kin, was appointed administratrix. It afterwards developed that there was a surviving child who demanded administration, and was eventually adjudged entitled. In the meantime, the widow had brought...