Underwood v. Underwood's Adm'r

• Decision Date: 19 November 1901
• Citation: 65 S.W. 130,111 Ky. 966
• Parties: UNDERWOOD v. UNDERWOOD'S ADM'R. [1]
• Court: Kentucky Court of Appeals

65 S.W. 130

111 Ky. 966

UNDERWOOD v. UNDERWOOD'S ADM'R. ^[1]

Court of Appeals of Kentucky.

November 19, 1901

Appeal from circuit court, McCracken county.

"To be officially reported."

Appeal by G. B. Underwood to the McCracken circuit court from an order of the McCracken county court refusing to set aside an order placing the estate of P. A. Underwood in the hands of the public administrator, and refusing to appoint G. B Underwood administrator. Judgment affirming judgment of county court, and G. B. Underwood appeals. Reversed.

Edward W. Hines and Wheeler & Worten, for appellant.

Hendrick & Miller, for appellee.

PAYNTER C.J.

The intestate died in McCracken county on February 8, 1901. On the following day the county court of that county made an order placing the decedent's estate in the hands of the public administrator. The appellant, a kinsman of the decedent, though not a distributee, gave notice that he would move the court at the March term following to set aside the judgment placing the estate in the hands of the public administrator. The question here involved is as to the right of the county court to confide the estate of a deceased person to the public administrator until after the expiration of three months from his death, no one in the meantime having applied for letters of administration. The sections of the statute relating to the subject are as follows:

"Sec 3896. The court having jurisdiction shall grant administration to the relations of the deceased who apply for the same, preferring the surviving husband or wife, and then such others are next entitled to distribution, or one or more of them whom the court shall judge will best manage the estate.

"Sec. 3897. If no such person apply for administration at the second county court from the death of an intestate the court may grant administration to a creditor, or to any other person, in the discretion of the court. If a will shall afterward be produced and proved, the administrator shall cease, and the court may proceed to grant a certificate of the probate thereof, or, in the proper case, letters of administration, with the will annexed."

"Sec. 3905. The several county courts of this commonwealth, in which there is a public administrator and guardian, shall confide to him the administration of the estate of deceased persons in all cases in which, by law, the jurisdiction to grant letters testamentary or administration applies, i it shall appear, after the expiration of three months from the death of the decedent, that no one will qualify as executor or apply for administration. ***"

No distributee of the estate applied to the county court to be appointed administrator of the estate. The second county court not having arrived, a creditor of the estate was not entitled to be appointed administrator thereof. Section 3897. The legislature intended (section 3905) that the county courts of this commonwealth should only place the estates of deceased persons in the hands of the public administrator after the expiration of three months from the death of the decedent, and then in cases where no one will apply for administration. We are of the opinion that the county courts are without jurisdiction to place estates in the hands of public administrators, except under the circumstances provided in section 3905. It is a jurisdictional fact to be shown that the decedent has been dead more than three months, and that no one else has applied for letters of administration. If the county court can place the estate of a deceased person in the hands of the public administrator under the circumstances in this case, then in every case the county court can, without consulting the distributees, kinsmen, or creditors of the estate, place the estate in the hands of the public administrator immediately upon the death of the deceased, thus entailing in some instances great expense and loss to the estate. If the parties are required to appeal from the order of the county court to have it corrected, then much expense and delay will follow such litigation. We do not adjudge that the appellant is entitled to qualify as the personal representative of the estate, but, being a kinsman, he has such interest as enables him to prosecute this appeal.

The judgment is reversed, with directions that the circuit court remand the case to the county court for its determination as to who is entitled to qualify as personal representative of the estate.

(Nov. 21, 1901.)

HOBSON J. (dissenting).

The question involved in this case is whether the order of the county court is void, or merely erroneous, because made prematurely. I cannot concur in the conclusion that this renders the order void, although I concede that the order was made prematurely, and should have been set aside on motion. The question turns on the proper construction of sections 3894-3897, 3905, Ky. St., which are as follows: "When any person shall die intestate, that court shall have jurisdiction to grant administration on his estate that would have had jurisdiction to probate his will, had he made one." Section 3894. "Original administration shall not be granted after the expiration of twenty years from the death of the testator or intestate. If so made it shall be void." Section 3895. "The court having jurisdiction shall grant administration to the relations of the deceased who apply for the same, preferring the surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them whom the court shall judge will best manage the estate." Section 3896. "If no such person apply for administration at the second county court from the death of an intestate the court may grant administration to a creditor, or to any other person, in the discretion of the court. If a will shall afterward be produced and proved, the administration shall cease, and the court may proceed to grant a certificate of the probate thereof, or, in the proper case, letter of administration, with the will annexed." Section 3897. "The several county courts of this commonwealth, in which there is a public administration and guardian, shall confide to him the administration of the estate of deceased persons in all cases in which, by law, the jurisdiction to grant letters testamentary or administration applies, if it shall appear, after the expiration of three months from the death of the decedent, that no one will qualify as executor or apply for administration; and shall also confide to said public administrator and guardian the care and control of the persons and estates of all minors, in case it shall appear that such minor hath no testamentary guardian, and no one will apply for or serve as such by the appointment of the court." Section 3905.

It will be observed that section 3894 is the only one which uses the words, "that court shall have jurisdiction." No reference is made to jurisdiction in any of the other sections. It will also be observed that section 3895, after providing that original administration shall not be granted after the expiration of 20 years from the death of the intestate, also expressly provides that, if so made, it shall be void. If the legislature had understood that administration after 20 years would be void because forbidden by the previous part of the section, it would not have added the words, "if so made, it shall be void"; and the fact that no such qualification is added to section 3896 3897, or 3905 is evidence that ...