Underwood v. Underwood's Admr.

Opinion op the court by CHIEF JUSTICE PAYNTER Reversing. The intestate died in McCracken county on February 8, 1901. On the following day the county court of that county miadle 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 dteat'h, 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 'husband1 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, intestate1 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 [969] 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, if it shall appear, after the expiration of three month's 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 hand's 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 [970] 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 remiand 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.)