Sumrall's Committee v. Commonwealth

• Citation: 162 Ky. 658,172 S.W. 1057
• Parties: SUMRALL'S COMMITTEE v. COMMONWEALTH.
• Decision Date: 10 February 1915
• Court: Court of Appeals of Kentucky

172 S.W. 1057

162 Ky. 658

SUMRALL'S COMMITTEE v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 10, 1915

Appeal from Circuit Court, Boyle County.

Action by the Board of Tax Supervisors of Boyle County against the Fidelity & Columbia Trust Company, as committee of William L Sumrall, a lunatic. Judgment in favor of plaintiff, and defendant appeals. Affirmed.

Wm. L Whittinghill, of Louisville, for appellant.

Henry Jackson, of Danville, for the Commonwealth.

SETTLE J.

This appeal grew out of the action of the board of tax supervisors of Boyle county in listing and assessing for taxation for the year 1914 property, alleged to have been omitted, belonging to William L. Sumrall, a lunatic, held by appellant, Fidelity & Columbia Trust Company, as his committee; the latter having appealed from the action of the board of supervisors to the quarterly court, thence to the circuit court; and from the judgment of the latter court, which was also adverse to its contention, the committee has appealed to this court. The several appeals thus prosecuted by the committee are allowed by section 4128, Kentucky Statutes, which provides:

"Any informality or irregularity in the execution of their duties as supervisors, and any failure of duty on their part, shall not render any assessment invalid. But any taxpayer feeling himself aggrieved by the action of said board of supervisors, may appeal to the quarterly court within thirty days after the final adjournment of said board, by filing with the judge of said court a certified copy, under the hand of the clerk of said board, of the action of said board. 'And as to further appeals, he shall have the same rights as are now allowed by law in civil cases. It shall be the duty of the county attorney to appear and defend for the board.' "

In its answer or written statement filed in the courts below appellant resisted the listing of the property in its hands belonging to the lunatic, William L. Sumrall, for taxation for the year 1914, upon the ground that his residence or domicile had, prior to September 1, 1913--the date as of which property subject to taxation became assessable in this state--become fixed in the state of Maryland. The quarterly and circuit courts sustained a demurrer to the pleading in question, thereby holding the property of the lunatic subject to taxation in Boyle county for state and county purposes, and such was the judgment entered in each court.

The admitted facts show that William L. Sumrall is 45 years of age, and was born and reared in Boyle county, where he resided until 1905, when he became insane, and was, for the purpose of confinement and treatment, sent by his father to an asylum for the insane in the state of Maryland. In January, 1907, his father, J. K. Sumrall, died, and in September of that year William L. Sumrall was by verdict of a jury and judgment of the Boyle county court formally found to be and adjudged insane. At the same time appellant was, by an order of that court, appointed and qualified as his committee, by virtue of which it took in charge the lunatic's estate. In 1911 the Sumrall farm, situated in Boyle county near Danville, was by decree of the Boyle circuit court sold, and the proceeds of sale distributed to the three children of J. K. Sumrall; the appellant receiving as committee the share of William L. Sumrall. J. K. Sumrall lived upon the farm in question until his death, and there reared his children. William L. Sumrall's home was with his father upon this farm until he was sent by the latter to the insane asylum in Maryland in 1905. The appellant, as committee, paid taxes in Boyle county upon the estate of its ward from the time of its appointment and qualification as committee down to the year 1914.

In view of the foregoing undisputed facts, it is manifest that William L. Sumrall's domicile, both of origin and selection, was, and continued to be, in Boyle county to the time he became insane; that he has never recovered from his insanity, and is absent from Kentucky through no choice of his own; from which it would seem to follow that his domicile continues to be, and is now, in Boyle county. This is certainly true, unless appellant, as committee, can, by its mere election, declare him a resident of the state of Maryland, for the purpose of defeating the state of Kentucky and Boyle county of its right to assess and tax the ward's property in Boyle county.

It is not claimed in the pleading filed by appellant that its ward's property was taxed or assessed for taxation for the year 1914, or at any time, in the state of Maryland, or that it is subject to taxation in that state, but simply that it cannot be taxed in this state because of the ward's residence in the state of Maryland. Appellant is a Kentucky corporation; its place of business being in Louisville, Ky. When it accepted the appointment and qualified as committee for William L. Sumrall in 1907, though he was then insane and confined in an asylum of another state, he was domiciled in Kentucky. If such had not been the fact, the Boyle county court would have had no jurisdiction to appoint the committee, nor appellant the right to accept the trust. Appellant must statedly make settlements of its accounts as committee in the Boyle county court, and, if it were to relinquish the trust, its resignation would have to be made to the Boyle county court, or, if it had to be sued for a violation of the trust, the action would have to be brought in the Boyle circuit court.

From the appellant's appointment as committee to the present time the status of the ward and his estate has remained unchanged, and there is no claim, and cannot be, that the insane ward fixed his domicile in Maryland, but asserted only that appellant, before September 1, 1913, elected to fix the ward's domicile in that state. In order to enable one of sound mind to change his domicile or acquire a new one, there must be: (1) Freedom of choice; (2) bodily presence in the chosen locality; (3) an intention to remain there permanently. But an insane person is incapable of exercising either choice or intention, nor can these twin elements essential to the acquisition of a new domicile in another state be supplied by the committee of an insane person.

An interesting discussion of the question under consideration will be found in Minor's ...