O'Malley's Admr. v. McLean

Opinion of ti-ie coubt by JUDGE BURNAM Reversing. This is an appeal from a judgment of the Jefferson circuit court, construing so much of section G of the Kentucky Statutes as relates to the distribution of the proceeds of a judgment recovered in a suit under that' .section. The facts which gave rise to the litigation are as follows: The will of Patrick O’Malley was duly probated by the county court of Jefferson county on the 21st 'of August, 1895. Decedent owned at his death a piece of real estate in the city of Louisville worth about $1,500, which he devised to his wife during her life, and at her death to Michael John McLean in fee. The executor named in the will having declined to serve as such, the Louisville Trust Company veas appointed administrator with the will annexed, and duly qualified under the appointment. It therefore instituted an action under section G of the Kentucky Statutes to recover from the Union Cement and Lime Company damages for the death of its intestate, which it alleged had been caused by the wrongful act of the company. This proceeding resulted in the recovery of $1,500. Out of the recovery, it paid the funeral [4] expenses, cost of administering the recovery, including an attorney’s foe of $150, and the balance to the widow, testator having left no children. After the termination of the damage suit, the heirs at law instituted a suit to set aside the order of the county court, admitting his will to probate. The administrator resisted these proceedings, which resulted in a verdict sustaining the will. Thereafter the appellant, as administrator, instituted this .suit to settle its accounts and wind up the estate in its hands. The case was referred to the master commissioner to report the debts due by the estate, who allowed the attorneys of the administrator $200 for their services in the contest proceeding over the will, which, with costs and other debts due by intestate1, made the claims against the estate aggregate about $1,184. Numerous exceptions were filed to this report, and the chancellor finally rendered the following judgment : “Tt appearing to the court from the commissioner's report herein that the plaintiff instituted under section 6 of the Kentucky Statutes an action in the Jefferson circuit court, — No. 9,134, — -and styled 'Louisville Trust Company, Adm’r of Patrick O’Malley v. Union Cement and Lime Company,’ to recover damages from the defendant for negligently causing the death of said O’Malley; and that there was recovered by the piaintiff in said action the sum of $1,500. Tt is now ordered by the court that out of said recovery there shall be paid the following claims against the estate1 of said O’Malley: (1) The funeral expense of said O’Malley, $101.00. (2) Fee allowed Richards, Raskin & Ronald, for legal services rendered the administrator in action No. 8,296, Jas. Rurke, etc. v. Louisville Trust Co., Administrator of Patrick O’Malley, said action being a suit to break and .set aside1 the will of said O’Malley, $200.00. (3) Fee allowed J. M. Chatterson, guardian ad litem of Michael John McLean, [5] in action 8,296, Burke v. Louisville Trust Co., Adm’r., $25.00. (4) The court costs in this action as follows: To John S. Cain; clerk, $1.85; to Henry A. Bell, sheriff, $1.80; to ,Jno. H. Page, clerk, $11.75; to Louisville Trust Compauy, commissions, $25.00; to G. A: Winston, commissioner, $35.00; to G. A. Winston, commissioner, for taking depositions, $7.50; to Richards, Baskin & Ronald, plantiff’s attorneys, $150.00. Also such costs as may be hereafter incurred.” Upon this appeal* it is contended for the appellant that this fund was only properly chargeable with the cost of its recovery, including attorney’s fees and the funeral expenses, where decedent left no other estate out of which such expenses could be paid. Section 241 of the Constitution is as follows: “Whenever the death of a person shall result from an injury inflicted by the negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporation and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in alii cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong, and until such provision is made the'sameshall form part of the personal estate of the deceased person.” Under this section of the Constitution, the proceeds of the recovery would be applied, first, to the payment of the debts of the deceased, including cost of administration, and would then go as provided by the general statutes of descent and distribution. But, pursuant to the authority contained in the constitutional provision, the General Assembly saw fit to provide in section 6 that: “The amount recovered, less funeral expenses and the cost of administration and such cost about the recovery, including attorney’s fees, as are not included in the recovery from the defendant, shall be [6] for the benefit of and go to the kindred of the deceased, viz.,” etc. We think there can be no doubt that the General Assembly intended that this recovery should go directly to the widow and children of the deceased to compensate for the loss of the earnings of the husband and father, and was never intended as a protection for the creditors of the deceased; otherwise no action on their part would have been necessary. All of the claims which the chancellor decreed should be paid out of the recovery in the damage suit are by other sections of the statute made preferred claims against the general estate left by the decedent, and the effect of his ruling is to charge the fund which the statute sets apart for the widow with all the preferred claims against the estate of decedent, and to leave his general estate for his creditors. Black, Interp. Laws, sec. 49, says: “In construing a statute, of whatever class it may be, an interpretation must never be adopted which will defeat the purpose of the act if it will admit of any other reasonable construction.” And End. Interp., St., sec. 329, says: “No construction is admissible -which would sanction an evasion of an act, or defeat the obvious intention of the Legislature.” There should have been paid out of the fund of $1,500, recovered under section 6, the cost of administering that particular fund, including attorney’s fees, and cost .incurred in connection with the prosecution of the suit in which the recovery was made, and funeral • expenses. All other expenses incurred in the administration of decedent’s estate should have been paid out of his general estate. We do not think that the widow is entitled to be reimbursed for funeral expenses out of the general estate. For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.