Self v. York

• Citation: 271 S.W. 666,208 Ky. 594
• Parties: SELF ET AL. v. YORK ET AL.
• Decision Date: 28 April 1925
• Court: Court of Appeals of Kentucky

271 S.W. 666

208 Ky. 594

SELF ET AL. v. YORK ET AL.

Court of Appeals of Kentucky.

April 28, 1925

Appeal from Circuit Court, Edmonson County.

Action by Mike Self and others against Gilliam York and others. Judgment on demurrer for defendants, and plaintiffs appeal. Affirmed.

Milton Clark, of Brownsville, for appellants.

Logan &amp McCombs, of Brownsville, for appellees.

SAMPSON J.

A general demurrer was sustained to petition of Self et al appellants, and the cause dismissed when they declined to further plead, and they appeal. It is averred in the petition that S. P. York died intestate, domiciled in Edmonson county leaving surviving him as his only heirs at law the appellees Gilliam York, W. M. York, and Lizzie Graville; that during his lifetime York and wife, then old, lived on a described farm in Edmonson county, and were the owners of it; that during that time S. P. York engaged appellants to work for him and to wait upon him and serve him and his aged wife so long as they lived, and that appellants accepted the employment and did work for York until he and wife passed away; that S. P. York agreed to pay appellants for labor done by them for him and wife; that this employment continued for about three years, and that during that time York paid appellant $80; "and they further say that at the time of the death of said S. P. York and his wife, as aforesaid, he was indebted to these plaintiffs in the sum of $1,200 for services performed under said contract of employment, and that same is now just and due, * * * except the sum of $80 above admitted to have been paid on said claim by decedent, S. P. York." It was further alleged in the petition that at the death of York he had about $1,000 in cash, which passed by descent to his children, the appellees; that by reason of this fact the appellees took possession of the money and the tract of land, and are holding and claiming it as their own, and are therefore liable under section 2089, Kentucky Statutes, to appellants to the extent of the amount received from the estate of their father on the indebtedness of their father, York, to appellants. To the petition is attached a prayer for the sum of $1,120 against Gilliam York, W. M. York, and Lizzie Graville.

A general demurrer was filed to the petition on the grounds, as it is said in brief of counsel, it does not aver that a verified claim was presented to the administrator of York before suit was commenced, and upon the further ground that suit was commenced before the expiration of six months from the death of intestate and the qualification of the administrator.

We have held that in an action under section 2089 no verified claim is required to be presented to the administrator. Hill's Adm'r v. Grizzard, etc., 133 Ky. 816 119 S.W. 168; Maynard v. Maynard, 178 Ky. 332, 198 S.W. 910; King v. King, 182 Ky. 665, 207 S.W. 1. We have also held that, where defendant demurs generally to the petition on a claim against an estate of a decedent before moving for rule to require verification, or taking other proper steps to obtain verification, he thereby...