Watkins v. Watkins' Admr.

• Decision Date: 14 January 1910
• Citation: 136 Ky. 266
• Parties: Watkins v. Watkins' Admr.
• Court: Kentucky Court of Appeals

136 Ky. 266

Watkins v. Watkins' Admr.

Court of Appeals of Kentucky.

January 14, 1910.

Appeal from Jefferson Circuit Court (Chancery Branch, First Division).

SHACKELFORD MILLER, Judge.

Motion overruled and plaintiff appeals. — Reversed.

BOYCE WATKINS and L. A. HICKMAN for appellant.

PIRTLE & JONES for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Reversing.

Sarah A. Watkins, widow of F. G. Watkins, deceased, died in Jefferson county, October 11, 1907, intestate, leaving personal property in which she owned a life estate of the value of $8,000. The property seems to have been held intrust by the intestate's son, the appellant, Thomas H. Watkins, and her son-in-law, Dr. Henry W. Pirtle, trustees under the will of F. G. Watkins. They were also executors of the will.

F. G. and Sarah A. Watkins left but two children surviving them, viz., the appellant, Thomas H. Watkins, and Ivie W. Pirtle, wife of Henry W. Pirtle, who are equal devisees under their father's will, and since the death of their mother equally entitled to the trust estate of which she was the beneficiary during her widowhood, except the sum of $1,000 the will of the father directed should be paid, at the death of the widow, out of the trust estate to his grandson, F. G. Watkins. Shortly after the death of Sarah A. Watkins, the Jefferson county court, upon the motion of Mrs. Ivie W. Pirtle and without notice to appellant, appointed appellee, H. I. Fox administrator of her estate, and he thereupon gave the required statutory bond and duly qualified as such fiduciary. On the 26th day of November, 1907, and before the second county court in Jefferson county from the death of the intestate, the appellant, Thomas H. Watkins, appeared in the court, and moved the court to set aside the order appointing the appellee, H. I. Fox, administrator of his mother's estate, and to appoint him (appellant) administrator thereof, at the time tendering the necessary statutory bond with good security required of an administrator and filing in support of the motions his own affidavit and that of L. C. Hickman. The object of his affidavit was to show his relationship to the intestate and consequent right under the statute to qualify as administrator; also, that his appointment as such would be beneficial to the estate and to his sister, Mrs. Pirtle. The purpose of Hickman's affidavit was to show appellant's excellent character, business capacity, and general fitness for the position, and that as administrator his interest would not be antagonistic to that of Mrs. Pirtle. On the other hand, in resistance of his removal and the appointment of appellant as administrator, appellee filed the affidavit of himself and Mrs. Ivie W. Pirtle, in each of which it was, in substance, claimed that appellant's appointment would be improper as in a suit then pending for a construction of F. G. Watkins' will and settlement of his estate brought by the executors, or in litigation that might in the future arise over the estate of Sarah A. Watkins, the interest of appellant in these estates and the performances of his duties as a fiduciary, would probably induce or compel him to antagonize the interest and rights of Mrs. Pirtle. Upon submission of the matter the county court overruled appellant's motion to set aside the order appointing the appellee, Fox, administrator of Sarah A. Watkins' estate, and refused to appoint appellant in his stead. From the judgment manifesting these rulings an appeal was prosecuted by appellant to the circuit court, and, that court having rendered a like judgment, a second appeal brought the case to this court for review.

Ky. St. sec. 3896, provides: "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 adjudge will best manage the estate." In Buckner's Adm'r v. Buckner, 120 Ky. 596, 87 S. W. 776, 27 Ky. Law Rep. 1032, this court, in passing upon the right of the daughter of an intestate to administer upon his estate, as against another who had been appointed administrator at the instance of a creditor following a waiver by the intestate's mother of her supposed right to qualify, said: "Under this statute the relation first in rank as distribute is entitled as a matter of right to administer upon the decedent's estate, provided such distribute possesses otherwise legal qualifications to act, as for example is a person who is a resident of the commonwealth, and of contractual age and capacity. By the succeeding section, if no such person apply for administration at the second county court from the death of the intestate, the court may...