Spayd's Adm'r v. Brown

• Decision Date: 30 May 1907
• Citation: 102 S.W. 823
• Parties: SPAYD'S ADM'R v. BROWN ET AL.
• Court: Kentucky Court of Appeals

102 S.W. 823

SPAYD'S ADM'R v. BROWN ET AL.

Court of Appeals of Kentucky.

May 30, 1907

Appeal from Circuit Court, Campbell County.

"Not to be officially reported."

Webster Helm was appointed administrator of the estate of John W Spayd, deceased. Two of decedent's sisters appealed to the circuit court from an order overruling their motion to revoke the appointment, and the case was remanded, with directions to observe their wishes, from which judgment the administrator appeals. Reversed.

Hodge &amp Wolff, for appellant.

Herbert Jackson, for appellees.

CARROLL J.

In April, 1906, about two weeks after the death of John W Spayd, a resident of Campbell county, Ky. the county court on motion of a creditor, appointed Webster Helm administrator of his estate. In May, 1906, two sisters of the decedent appeared in the county court and moved the court to revoke the appointment of Helm and appoint Charles S. Furber in his place. This motion was overruled, and they prosecuted an appeal to the circuit court, where it was adjudged that his sisters were entitled to and had the right to designate a person to act as administrator, and the proceeding was remanded to the county court, with directions to observe the wishes of the sisters.

The decedent died intestate, leaving surviving him no kindred resident in this state; both of his sisters residing in other states. Under section 3896 of the Kentucky Statutes of 1903 if any relatives of the decedent who were residents of this state had applied in proper time, it would have been the duty of the county court to appoint one of them who was qualified to act in preference to a stranger; and if such relative applies within the time mentioned in section 3897 the court should set aside the appointment of a stranger or creditor previously made and grant letters of administration to the relative showing himself to be competent and qualified to act. In Underwood v. Underwood, 65 S.W. 130, 111 Ky. 966, the court held that an order placing a decedent's estate in the hands of the public administrator before the expiration of three months from the decedent's death was void, as under section 3905 the court was without jurisdiction to confide the estate to the public administrator until the expiration of three months. But, whilst the appointment of a creditor or other person before the expiration of the second county court day after the death of the intestate is voidable, if any relative qualified to act applies...