Taylor v. Moore

• Decision Date: 13 December 1901
• Citation: 112 Ky. 330,65 S.W. 612
• Parties: TAYLOR v. MOORE et al. [1]
• Court: Kentucky Court of Appeals

65 S.W. 612

112 Ky. 330

TAYLOR v. MOORE et al. ^[1]

Court of Appeals of Kentucky.

December 13, 1901

Appeal from circuit court, Fleming county.

"To be officially reported."

Action by Sabina Taylor against Amelia Moore and George Moore to recover possession of property and to vacate a judgment. Judgment for defendants, and plaintiff appeals. Reversed.

Pumphrey Cassidy & Grannis, for appellant.

O. R Bright and Jno. P. McCartney, for appellees.

HOBSON J.

On October 10, 1900, appellee Amelia Moore filed before the county judge of Fleming county her affidavit stating that her mother appellant, Sabina Taylor, "is of unsound mind, by reason of her age and infirmity, and is incapable of managing her estate." Thereupon the county attorney filed an information asking that an inquest be held. O. R. Bright, an attorney, was appointed to defend for appellant, and a jury was sworn, who returned the following verdict: "We, of the jury, find from the evidence that Sabina Taylor is, by reason of great age and physical infirmity, unable to control and manage her estate and care for same; that she was born in and resides in Fleming county, and is eighty-two years of age; that she owns fifty-six acres of land, worth about $1,120.00, and said Sabina Taylor is not capable of laboring, in whole or in part, for her support." On this verdict the county judge entered a judgment reciting the above proceedings and verdict, and then adding these words: "Wherefore it is adjudged by the court that said Sabina M. Taylor is, by reason of great age and physical infirmity, unable to manage her estate, and that a committee be appointed to take charge of her and her estate." So far as appears, no process was served on appellant. She was not present at the trial, and had no notice of the proceeding. Appellee Amelia Moore was appointed committee for her. On November 30, 1900, appellant filed in the Fleming circuit court her petition in equity against appellees, Amelia Moore and George Moore, her husband, in which she alleged that she owned the property referred to in the verdict; that the defendants were in the wrongful and illegal possession of her property under and by virtue of the appointment of appellee Amelia Moore as committee in the county court proceeding; that this proceeding was void and cast a cloud upon her title. She prayed that she be restored to the possession of her property, that the whole proceeding be canceled as illegal, and for her costs. The court sustained a special demurrer to the petition on the ground that the plaintiff had no legal capacity to sue.

By section 2149 the several circuit and county courts have power and jurisdiction, within their respective counties, of the care and custody of the persons and estates of "those whose minds, on account of any infirmity or weight of age have become so imbecile or unsound as to render them incompetent to manage their estates." By section 2162, "if any person is of unsound mind," it is the duty of the county attorney, in the absence of the attorney for the commonwealth, to cause an inquest to be held, and some member of the bar must be appointed to represent "the person alleged to be of unsound mind." In Menifee v. Ends, 97 Ky. 388, 30 S.W. 881, this court held that the provisions of these sections apply only to persons of unsound mind, and jurisdiction to assume the care and custody of the estates of persons incompetent to manage their own estates is limited, under the statute, to those whose incompetency is due to mental unsoundness or...