Young's Adm'r v. Louisville & Nashville R. R.

Opinion By Judge Nunn Reversing. 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 defendants 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 — 487 — 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 corporation, 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 by the county court of the county in which the killing occurred for the sole purpose of bringing this action. The admission is to the effect that there was no person in esse in this State — 488 — 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 can not sue in such case, and that a nonresident of the State can not qualify as the personal representative in this State, and that prior to the adoption of sec. 241 of the present Constitution and the enactment of sec. 6 of the Ky. Stats. 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. (Radford v. Radford, 5 Dana, 156; L. & N. R. R. Co. v. Brantlay’s Adm’r, 96 Ky., 308, 16 Ky. Law Rep., 691, 28 S. W., 477, 49 Am. St. Rep., 289; Brown’s Adm’r v. L. & N. R. R. Co., 97 Ky., 229, 17 Ky. Law Rep., 145, 30 S. W., 639; Hall’s Adm’r v. L. & N. R. R. Co., 102 Ky., 483, 19 Ky. Law Rep., 1529, 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 or negligence of any person or corporation, although the decedent left no property in the State to be administered. In these cases it was decided that, strictly speaking, such a claim was not a debt or demand belonging to or owned by the decedent at the time of his death; neither was it strictly personal estate of the decedent, but under the sections of the Constitution and statutes referred to a right of action was expressly given to an administrator, which — 489 — necessarily implied the right to have an administrator appointed by the local courts for the purpose alone of instituting an action to recover damages for the tort. Under these authorities the Whitley County Court undoubtedly had the right to appoint an administrator for the decedent. The only question remaining to be determined is whether its appointment of the appellant was void for the reason that it appointed him before the second term of the county court after the death of the decedent. By sec. 1057, Ky. Stats. 1903, the county court is given exclusive jurisdiction to appoint personal representatives. By sec. 3896 it is provided 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. By sec. 3897 it is provided that, if no such persons 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. These last two sections were enacted for the purpose of giving the kin or creditors of the decedent the preference of appointment. This was the only purpose of these sections. It is conceded in this case that the decedent had neither kin nor creditors residing in this State; hence there could be no application of these sections to the case at bar. The only necessity for waiting for the arrival of the second term of the court is to afford an opportunity for the next of kin or creditors to apply for the appointment. When the reason for the rule does not exist, the rule ceases. Appellee’s counsel contends that the power to appoint any person as administrator at the first term — 490 — of the court after the death of the decedent depends upon the question as to whether or not the person to be appointed is a distributee of the estate of deceased; that the relationship is a jurisdictional fact, and without it the court had no jurisdiction to appoint any other than a distributee until after the second term of the county court after the death of the decedent. We can not agree to this proposition. Sec. 1057 of the statutes confers the jurisdiction upon the county court. The other sections referred to delay him in the exercise of that jurisdiction until after the second county court for the benefit of the relatives in case they see proper to apply. But when there are no relatives, as in this case, there can be no reason for the delay by the county court in the exercise of its jurisdiction. Appellee contends that the case of Underwood v. Underwood’s Adm’r, 111 Ky., 968, 23 Ky. Law Rep., 1287, 65 S. W., 130, is conclusive, and determines the case in its favor. That case is unlike this. It was between citizens of this State, and the application for the removal of the administrator was made by one who had such an interest as gave him standing in court. In addition to this the case is governed by sec. 3905, Ky. Stats. 1903, which prohibited a county court from placing the settlement of a decedent’s estate in the hands of the public administrator before the expiration of three months from the death of the decedent. The public administrator is an official of the county, and lie executes one bond for the faithful discharge of his duties, which is to secure all estates referred to him under the statutes. Tie has no power to receive and the court has no power to refer estates to him for settlement except in accordance with the provisions of sec. 3905 of the statutes. The appellee in its answer alleged that the county — 491 — court had removed the appellant as administrator and appointed one A. J. Sullivan in his stead; that this was upon the motion of Mary Wherry, the mother of decedent, who resided in the State of North Carolina, The lower court, on motion of appellant, struck out this part of the answer. If one who had the preference under the statutes had appeared before the second county court after the death of the deceased and made application to be appointed as the administrator, and had been qualified to act as such administrator, then it was within the power of the court, and its duty, to have set aside the order appointing appellant and permitted that person to qualify. After the second county court from decedent’s death the removal could have been made only for cause. Mary Wherry, being a nonresident of the State, could not qualify herself; and she had no right to dictate to the court who should be appointed administrator in her stead, although it is usual and proper to give due consideration to her wishes. (Triplett v. Wells, Litt. Sel. Cas., 49.) For these reasons the judgment of the lower court is reversed, and the cause remanded, for further proceedings consistent herewith.