Smith v. Burnett

• Decision Date: 15 June 1945
• Citation: 300 Ky. 249
• Parties: Smith v. Burnett.
• Court: United States State Supreme Court — District of Kentucky

300 Ky. 249

Smith v. Burnett.

Court of Appeals of Kentucky.

June 15, 1945.

1. Prohibition. — A writ of prohibition may not be demanded as matter of right, but granting or refusal thereof lies within court's sound discretion.

2. Prohibition. — The extraordinary power to grant writ of prohibibition is rather sparingly exercised and then only to prevent injustice when there is no adequate remedy and to preserve orderly administration of law.

3. Courts. — The Court of Appeals entertains original jurisdiction of action for writ of prohibition only when inferior court is acting without jurisdiction or when it is acting erroneously within its jurisdiction and great and irreparable injury, for which petitioner is without adequate remedy, will follow therefrom. Constitution, sec. 110.

4. Executors and Administrators. — The circuit court has jurisdiction of suit to settle decedent's estate. Civil Code of Practice, secs. 428, 429.

5. Executors and Administrators. — A circuit court chancellor did not exceed his jurisdiction in referring action by administrators with will annexed for settlement of testator's estate to master commissioner for settlement of administrators' accounts, hearing of proof, and report of administration costs, including administrators' and their attorneys' compensation, though petition did not

state amount of testator's debts paid by plaintiffs or nature and value of testator's property. Civil Code of Practice, secs. 428, 429.

6. Prohibition. — Where only injury claimed by one seeking writ of prohibition to prevent hearing of suit by administrators with will annexed for settlement of testator's estate was that resulting from delay and cost incident to appeal to correct chancellor's alleged error in referring suit to commissioner, petitioner was not entitled to writ, as she had full and complete remedy by appeal. Civil Code of Practice, secs. 428, 429; Constitution, sec. 110.

7. Prohibition. — The Constitution does not authorize Court of Appeals to interfere by writ of prohibition with trial court's interlocutory orders on theory that error is being made when petitioner for writ has adequate remedy by appeal. Constitution, sec. 110.

In Court of Appeals.

Stephen L. Blakely for petitioner.

Oldham Clarke and Irvin Marcus for respondent.

OPINION OF THE COURT BY JUDGE SIMS.

Dismissing petition.

This action originated in this court and by it the plaintiff, Mrs. Patricia R. Smith (formerly Patricia R. O'Brien), seeks a writ of prohibition against Hon. Gilbert Burnett, Judge Chancery Branch, Second Division, Jefferson Circuit Court, to prevent him from hearing a suit filed by the Louisville Trust Company and the Fidelity & Columbia Trust Company, administrators with the will annexed of the estate of her first husband, John A. O'Brien, to settle his estate.

Mr. O'Brien died on January 1, 1934, and his will devised his large estate to his widow, the plaintiff in this action, after making specific bequests of $1,000 and $5,000, respectively, to Georgetown University of Washington, D.C., and the Catholic Bishop of decedent's home diocese. On February 18, 1937, the personal representatives instituted an action in the Jefferson Circuit Court under sec. 428 of the Civil Code of Practice for a settlement of the estate, naming as defendants the three beneficiaries and asking a reference to the master commissioner for a determination of the amounts to be paid them, the fixing of allowances and attorney fees and the final settlement of the estate. The petition contained this paragraph: "Plaintiffs say that after their qualification as administrators, with the will annexed, of the said John A. O'Brien, they entered upon the performance of their duties as such, and took possession of all of the personal estate of the said John A. O'Brien, deceased, and have continued to act as such administrators with the will annexed ever since; that they have caused all estate and inheritance taxes, except certain disputed and undetermined portions thereof, and all debts of said estate, to be paid, and have collected all income arising therefrom, and have kept an account of their receipts and disbursements and are now ready to make final settlement of the said estate; that they have not paid the bequests to either the College of Arts and Sciences of Georgetown University of Washington, or to the Roman Catholic Bishop of the Diocese of Louisville, but that there are sufficient assets to pay both of said bequests."

Georgetown University and the Bishop each filed answers claiming their respective devises under the will. An order of reference was made directing the commissioner to settle the accounts of the administrators; to advertise for and to hear proof of claims; to hear proof on the correctness of the administrators' report; to report cost of administration, including compensation due administrators and their attorneys; and to hear proof on how the estate should be distributed under the will.

The widow engaged in extensive litigation with the surviving members of a partnership in which her husband owned a material interest. That action came to this court and subsequently went to the United States Supreme Court, during which time the suit to settle the estate slumbered on the docket. O'Brien v. O'Brien, 321 U.S. 767, 64 S. Ct. 518, 88 L. Ed. 1063. Subsequent to the disposition of her case in the Supreme Court on May 8, 1944, the widow filed special and general demurrers to the settlement suit which were overruled. O'Brien v. O'Brien, 322 U.S. 769, 64 S. Ct. 1052, 88 L. Ed. 1594. Thereafter she filed the present action in this court averring that the jurisdiction to make a settlement with the personal representatives is vested exclusively in the county court under KRS 25.110, 25.170, 25.175, 25.180, 25.190 and 25.200, except in an action properly brought under secs. 428 and 429 of the Civil Code of Practice; that under the averments of the petition in the settlement suit Judge Burnett is proceeding and will proceed beyond his jurisdiction and that she has no adequate remedy and for this reason she asks a writ of prohibition against him.

Mrs. Smith filed her petition in this court on April 13, 1945, and exactly one week thereafter the University and the Bishop filed motions to...