Smallwood v. Boyd

• Decision Date: 02 March 1951
• Citation: 237 S.W.2d 66,314 Ky. 763
• Parties: SMALLWOOD et al. v. BOYD et al.
• Court: United States State Supreme Court — District of Kentucky

Page 66

237 S.W.2d 66

314 Ky. 763

SMALLWOOD et al. v. BOYD et al.

Court of Appeals of Kentucky.

March 2, 1951.

Redwine & Redwine and M. C. Redwine, Jr., Winchester, for appellants.

J. Douglas Graham, Campton, for appellees.

CLAY, Commissioner.

Appellee, as administratrix of the estate of Cecil Smallwood, brought this action against her father-in-law to recover an indebtedness of $1,130. The Court entered judgment as prayed.

In asking reversal, appellant first contends that appellee was not legally appointed as administrator. She filed a copy of her order of appointment, but the evidence indicates she had not filed a proper application in the County Court. We do not think the failure to comply strictly with the statute makes the order of appointment void. Such being the case, it may not be collaterally attacked in this proceeding. See Cunningham v. Clay's Adm'r, Ky., 112 S.W. 852; Well's Administratrix v. Heil, 243 Ky. 282, 47 S.W.2d 1041.

On the merits of the controversy, the following facts appear: Cecil Smallwood married appellee in 1939, and they had two infant daughters when he joined the army in March 1944. At that time he owned two mules and an interest in a truck. In September this property was delivered to appellant, and the latter either agreed to pay $1,130 for it or to realize that amount by selling it to others. Subsequently appellant did sell the mules and truck, and on July 10, 1947, he deposited $1,130 in a bank. This account was in the name of appellant 'as trustee' for Cecil Smallwood's infant children.

Prior to the time this deposit was made, Cecil Smallwood had died in Germany in 1945. The controversy in the case is whether or not this fund should properly be held in trust for the children or should be paid over to Cecil Smallwood's estate.

The substance of appellee's testimony is simply that the mules and truck were sold to appellant, and he promised to give the son his note for $1,130. Her proof seems to be based entirely upon what her husband told her and wrote to her in letters. This evidence was all incompetent under Section 606, subsection 2, of the Civil Code of Practice. Clearly appellee was testifying for herself concerning verbal statements of and transactions with the deceased out of the presence of appellant. Even though some of appellee's testimony was not objected to, it does not appear inconsistent with the arrangement which appellant says was made regarding this money.

Appellant produced a writing signed by him which reads as follows:

'Rosslyn, Kentucky

'September 5th 1944

'This is to certify that on this date, I, E. C. Smallwood, received of Lonnie Cecil Smallwood, the sum of Eleven Hundred and Thirty ($1130.00) to be used for my own benefit until his return from the Army, and in case that he should not return, then this money is to be placed in some good bank...