Young's Adm'r v. Louisville & N. R. Co.

Decision Date17 November 1905
Citation121 Ky. 483,89 S.W. 475
PartiesYOUNG'S ADM'R v. LOUISVILLE & N. R. CO.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by John Young's administrator against the Louisville &amp Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed.

T. Z Morrow, W. R. Henry, and E. L. Stephens, for appellant.

Benjamin D. Warfield, J. W. Alcorn, and E. W. Hines, for appelle.

NUNN J.

This action was instituted in the Whitley circuit court by the administrator of John Young against the appellee, in which damages were sought on account of the alleged negligence of the company in the killing of decedent in the county of Whitley. The petition alleged that the decedent was, at the time of his death, a nonresident of, and had no domicile in the state of Kentucky. The appellee in one paragraph of its answer alleged that the administrator, in whose name the action was brought, was not the next of kin to the decedent that the letters of administration were granted at the first term of the Whitley county court subsequent to the death of decedent, that by reason thereof his appointment was void, that he was not, at the time of the institution of this suit, the administrator of deceased, and that he had no authority to institute the same. To this portion of defendant's answer appellant interposed a demurrer. which was overruled by the court, and appellant excepted. Appellant filed his reply, in which he incorporated the following: "The plaintiff, for reply to the second paragraph of defendant's answer, says that at the time of the death of his intestate said intestate was a nonresident of the commonwealth and had no domicile therein; that each and all of the next or any kin of intestate were nonresidents of this state; and that he had, at the time of his death and at the time of plaintiff's appointment as his administrator, neither wife, widow, nor kin of any degree of affinity or consanguinity, nor distributee nor creditor, residing in this commonwealth or domiciled therein, at either of the times aforesaid. He avers that his appointment as administrator was made by the presiding judge of the Whitley county court for the purpose of instituting and prosecuting this action for the benefit of the estate of intestate." To this reply appellee filed a demurrer, which was sustained by the court, and, the appellant declining to plead further, his action was dismissed, and the case is before this court for review.

The single question presented for consideration on this appeal is whether the county court of this state, in which a nonresident intestate is killed in that county by the negligence of any person or incorporation, when at the time intestate has no domicile in this commonwealth and has no next of kin, distributee, or creditor residing therein, can appoint an administrator at the first term of the court succeeding the death; or is the court without jurisdiction to appoint until after the second term has passed? By a demurrer to this reply, the appellee admitted that appellant's intestate was a nonresident, had no domicile in this state, had no next of kin in any degree, had no distributee in this state, and was not indebted to any citizen or resident of this commonwealth, and that the appointment was made the county court of the county in which the killing occurred for the sole purpose of bringing the action. The admission is to the effect that there was no person in esse in this state that could have demanded an appointment as administrator.

There was no rejoinder to the effect that the intestate owned any estate in this state to be administered. It is well settled that a foreign administrator cannot sue in such case, and that a nonresident of the state cannot qualify as the personal representative in this state, and that prior to the adoption of section 241 of the present Constitution and the enactment of section 6 of the Kentucky Statutes of 1903 thereunder a personal representative could not be appointed for a nonresident decedent, unless it affirmatively appeared to the court that such decedent left property in this state to be administered. See Radford v. Radford, 5 Dana, 156; L. & N. R. R. Co. v. Brantlay's Adm'r, 96 Ky. 308, 28 S.W. 477, 49 Am. St. Rep. 289; Brown's Adm'r v. Louisville & N. R. Co., 97 Ky. 229, 30 S.W. 639; Hall's Adm'r v. Louisville & N. R. Co., 102 Ky. 483, 43 S.W. 698, 80 Am. St. Rep. 358, and the cases there cited. In the Brown and Hall Cases, supra, it was expressly decided that under the sections of the Constitution and Statutes referred to the county court had the power to appoint a personal representative for a nonresident decedent whose death was caused by the wrongful act of negligence...

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21 cases
  • Phillips' Committee v. Ward's Adm'r
    • United States
    • Kentucky Court of Appeals
    • November 10, 1931
    ... ... 1529, 80 ... Am. St. Rep. 358; Jacobs' Adm'r v. L. & N. R ... Co., 10 Bush, 263; Louisville & N. R. Co. v ... Shumaker's Adm'x, 112 Ky. 431, 53 S.W. 12, 21 ... Ky. Law Rep. 803; Young's ... ...
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    • United States
    • Kentucky Court of Appeals
    • December 6, 1932
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    • United States
    • Supreme Court of Kentucky
    • November 10, 1931
    ...10 Bush, 263; Louisville & N.R. Co. v. Shumaker's Adm'x, 112 Ky. 431, 53 S.W. 12, 21 Ky. Law Rep. 803; Young's Adm'r v. L. & N.R. Co., 121 Ky. 483, 89 S.W. 475, 28 Ky. Law Rep. 451; Walter's Adm'r v. Ky. Traction & Terminal Co., 206 Ky. 100, 266 S.W. The next complaint is that the trial cou......
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    • Kentucky Court of Appeals
    • March 28, 1930
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