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the parties to be settled and discharged by its payment to her of $2,000 damages, which amount was paid by appellee and accepted by her January 27, 1916, in full satisfaction of the damages sustained by the decedent's estate for and on account of his death. Which payment and settlement, it was alleged, was made and consummated without information or knowledge on the part of appellee or the administratrix of the decedent's estate that the appellant had instituted this action, or been appointed administrator of the decedent's estate in Kentucky.

Appellant filed a general demurrer to the answer as amended, and each paragraph thereof, and, without waiving his right to insist upon same, by reply controverted the affirmative matter of the answer, as amended, except the fourth paragraph thereof. The circuit court, being of opinion that the matters set up in the fourth paragraph of the answer constituted a good defense, overruled the demurrer, and, appellant failing to plead further, his petition was dismissed, and appellee awarded its costs. Appellant complains of the judgment entered in conformity to these rulings; hence this appeal. The following facts are admitted by the pleadings: (1) That at the time of his death, December 21, 1915, in Pike county, Ky., the decedent, Compton, was a bona fide resident of Scioto county, Ohio; (2) that appellant, by an order of the Pike county court made January 17, 1916, was appointed and duly qualified as administrator of his estate; (3) that appellant instituted this action against appellee January 26, 1916; (4) that Belle Compton, the widow of the decedent, was, by an order of the probate court of Scioto county, Ohio, duly appointed administratrix of his estate January 20, 1916; (5) that the decedent at the time of his death did not own any property in the state of Kentucky nor owe any debts therein; (6) that the appellee is a corporation created under the laws of West Virginia and has its chief office in that state; (7) that during the time that intervened between January 20 and January 26, 1916, appellee contracted and agreed with Belle Compton, as administratrix of the decedent's estate, to pay her $2,000 in full settlement of all damages claimed by her for his death, and that this sum was paid her by appellee January 27, 1916; (8) that at the time appellee thus contracted and agreed to pay the $2,000 to Belle Compton as administratrix in settlement for the death of her husband, this action had not been instituted by appellant, and when the payment of that sum was later made to her January 27, 1916, neither appellee nor Belle Compton had any knowledge of the institution of this action by appellant, nor of his appointment by the Pike county court as administrator of the decedent's estate; (9) that after receiving the $2,000 paid her by ap

her husband's estate, distributed and paid the same to the persons entitled thereto.

[1, 2] We have not been referred to nor have we found a case decided in this jurisdiction the facts of which were similar to those presented in the instant case. But, as the death of the decedent occurred in this state, and the cause of action arose therein, the remedy afforded by its law, if an action was necessary, must control as to the recovery of damages for his death, and by whom the action therefor should have been brought. Section 241, Constitution, provides:

"Whenever the death of a person shall result from an injury inflicted by negligence or wrongbe recovered for such death, from the corporaful act, then, in every such case, damages may tions and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all 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 same shall form part of the personal estate of the deceased person."

By section 6, Kentucky Statutes, it is provided:

"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same, and when the act is willful or the negcovered, and the action to recover such damligence is gross, punitive damages may be reages shall be prosecuted by the personal representative of the deceased. The amount recovered less funeral expenses and the cost of adminiscluding attorney fees, as are not included in the tration, and such costs about the recovery, inrecovery from the defendant, shall be for the benefit of and go to the kindred of the deceased deceased leaves either a widow and children or in the following order, viz.: * * 2. If the a husband and children, then one-half to such widow or husband and the other one-half to the children of the deceased."

Section 3880, Kentucky Statutes, provides: "If there be an executor or administrator of such decedent qualified by a court of this commonwealth, he alone shall have power to sue; but any debtor who shall pay his debt, or part of it, according to the provisions of the foregoing sections; without notice thereof, shall be discharged to the extent of such payment."

It will be seen from the language of this section that authority to bring such action is alone. L. & N. R. R. Co. v. Brantley, 96 Kỵ. conferred upon the resident administrator

Am. St. Rep. 291; Brown v. L. & N. R. Co., 97 Ky. 228, 30 S. W. 639, 17 Ky. Law Rep.

297, 28 S. W. 477, 16 Ky. Law Rep. 691, 49

145.

[3, 4] The question we are called upon to decide, however, is not whether appellant had authority to bring the action, but whether the settlement of damages made with the widow and Ohio administratrix of the decedent by appellee before its institution, but paid the day after its institution admittedly without knowledge on the part of either of them that the action had been instituted or that appellant had been appointed by the

dent's estate, constituted a valid defense to the action. Section 3882, Kentucky Statutes, declares that:

"A personal representative may compromise and settle any claim or demand for damages growing out of injury to or the death of the

decedent."

decedent is of any greater dignity than a debt owing to the estate of the decedent.

As the decedent Compton's wife was appointed administratrix of his estate in Scioto county, Ohio, the county and state of his residence, she is the principal or domiciliary administratrix, and the appellant, having been appointed in Kentucky, is an ancillary administrator. The title of a domiciliary rep

resentative, unlike that of an ancillary repre

In McFarland's Adm'r v. L. & N. R. R. Co., 130 Ky. 172, 113 S. W. 82, we held that the compromise of a claim for damages for the death of decedent, made under the authority conferred by section 3882, by an administra-sentative, extends to all of the decedent's pertor acting under a voidable appointment, was valid and binding upon one appointed administrator after the removal of the administrator making the compromise.

It is true we have held that a foreign ad

inistrator cannot sue in this state for a tort, and that the words "debts due to such decedents," found in section 3878, Kentucky Statutes, for which a nonresident executor or administrator by giving bond with surety resident of the county in which the action is brought is therein given authority to sue, do not include torts (L. & N. R. R. Co. v. Brantley, 96 Ky. 297, 28 S. W. 477, 16 Ky. Law Rep. 691, 49 Am. St. Rep. 291); but there seems to be nothing in that section or any other that would prevent a foreign personal representative from receiving in good faith a debt due his decedent, or money by way of damages for a tort resulting in the death of his decedent, that might in like good faith be voluntarily paid by the debtor or tort-feasor, or which would prevent the foreign personal representative from giving to the payor such an acquittance for the payment as would fully release him from all future liability for such debt or damages. Indeed, as we have already seen, section 3880, supra, which declares that an executor or administrator of the decedent, qualified by a court of this commonwealth, shall alone have power to sue for the death of the latter, seems to recognize the principle stated when it further declares that:

"Any debtor who shall pay his debt, or part of it, according to the provisions of the foregoing sections, without notice thereof (i. e., without notice of the qualification of the resident personal representative or of a suit by him to recover the debt), shall be discharged to the extent of such payment."

Obviously, if the voluntary payment of a debt under such circumstances to a nonresident personal representative would operate as a discharge to the debtor, for the same reason would the settlement of a claim of damages with the foreign personal representative and the payment to the latter of the amount of damages agreed upon in the settlement operate as a discharge to the payor, if such payment were made and accepted in good faith and without knowledge upon the part of the payor or payee that there had been a resident personal representative appointed, or a suit instituted by the latter for the recovery of the claim for damages thus settled. No reason is perceived for holding that a claim for damages for the death of the

sonal estate wherever situated, but the title of the ancillary representative is limited to the assets within the jurisdiction of his appointment. In 18 Cyc. 1229, in dealing with the rights and powers of domiciliary repre

sentatives, it is said:

assets in the jurisdiction where the letters are "Letters of administration extend only to the granted, and do not confer as a matter of right any authority to collect assets in another. But, since a foreign domiciliary representative has a title to assets wherever situated which may be recognized in the absence of local creditors or a local administration, he may under such circumstances take possession of property of the suit, and his possession will be recognized as estate if he can do so peaceably and without rightful and protected as fully as if he had taken out local letters of administration. He may also collect a debt due to the estate if voluntarily paid, and such payment is a valid discharge of the debt, and a protection against an action to collect the same debt by a domestic representative subsequently appointed; and since debts due from the United States have no situs at the seat of government, they may be received by a domiciliary representative at any place where the government may choose to pay them."

See Wilkins v. Ellett, 108 U. S. 256, 2 Sup. Ct. 641, 27 L. Ed. 718.

In Crosswell on Executors and Administrators, 152, the following statement of the law upon this subject will be found:

"The main rule or essential point of the rules relating to administration in various jurisdictions is that the administration which is taken out in the country of domicile of the deceased is the principal or domiciliary administration. Any other administration is ancillary, whether, it may or may not be prior in point of time to the administration in the domicile of the dedent in the fact that the personal estate which ceased. The reason for this distinction is eviis the basis of administration is governed by the laws of the domicile of the deceased, and all to the settlement and distribuquestions as tion of that estate should be settled by the laws of that country or state."

Again in the same volume at page 153 it is said:

"There are, however, points in which the existence of the principal administration affects the ancillary administration. Thus the princieral creditors, heirs, and next of kin, has such an pal administrator, since he represents the geninterest in the proceedings in another state that he is entitled to appear in time, and take such steps therein as may seem suitable and legal; for example, he may appeal from a decree of a judge of probate appointing an ancillary administrator."

We think it undoubtedly true that the domiciliary administratrix could have gone into the state of West Virginia, where appellee was incorporated, and where it has its corporate residence, and there main

"Frieda Maas died at her residence in Guttenberg, Hudson county, state of New Jersey, on surviving a son and daughter, both minors and the 15th day of November, 1898, leaving her residents of the same place. On the 23d day of August, 1899, the surrogate of Hudson county, N. J., issued letters of administration upon her estate to Frederick Maas, a brother of her deceased husband. After his appointment he presented a certified copy of his letters of admin

tained an action aaginst it on account of the death of her husband, which occurred in the state of Kentucky through the negligence of appellee, by pleading the constitutional provision and those of the statute of Kentucky giving a cause of action for his death; or, if prohibited by the laws of West Virginia from so doing, the action could have been instituted through an administrator ap-istration to the defendant bank, together with pointed in that state by pleading the laws of Kentucky authorizing the recovery, and thereby maintained the action under the comity existing between the two states. The domiciliary administratrix went into the state of West Virginia, and there made settlement with appellee, and was paid by it $2,000 accepted in satisfaction of the damages claimed on account of his death. This we think she had the authority to do under the general power conferred upon her by law as domiciliary administratrix to receive for the estate anything in the way of property or money that could be regarded as assets thereof, which might voluntarily be delivered or paid her; and it is admitted by the pleadings that no one had been appointed or qualified as administrator of the decedent in West Virginia.

It is further admitted by the pleadings that whatever amount of damages the appellee may have been or is liable for on account of the death of John Compton will have to be distributed in accordance with the laws of the state of Ohio, and that the $2,000 damages which the domiciliary administratrix received of appellee she has distributed as required by the laws of that state. So, if it were conceded that the appointment of appellant as administrator by the Pike county court was authorized, as there were no debts owing by the decedent in this state, it would have been the duty of appellant, if he had received the $2,000 paid by the appellee to transmit the money, less the cost of administration, to the domiciliary administratrix for distribution in accordance with the laws of the state of Ohio. In other words, the principal object of the law in requiring the ancillary administration in Kentucky was to aid the foreign or domiciliary administratrix in the collection of the claim for damages against appellee because she could not compel the payment of such damages by suing as administratrix in the state of Kentucky. So in the case here presented we find that by the voluntary payment of $2,000 in damages made by appellee to her the domiciliary administratrix obtained an apparently fair settlement for the death of the decedent, without the assistance of the resident administrator and without such cost to the estate as would have attended his collection of the demand by suit.

The view we have expressed of the law of this case is fully sustained by the case of Maas v. German Savings Bank, 176 N. Y. 377, 68 N. E. 658, 98 Am. St. Rep. 689, the

her passbook, and demanded the payment to him of the amount which the decedent had upon deposit, and thereupon the bank paid over such balance to him. Prior thereto, and on the 9th day of March, 1899, the plaintiff, Charles Maas, another brother of the decedent's deceased husband, applied and had issued to him letters of administration upon her estate by the surrogate of New York county in this state, and after the defendant bank had paid the amount on in New Jersey, he served a notice of his apdeposit with it to the administrator appointed pointment upon the defendant and demanded the payment to him of the amount of such dewas brought [by the New York administrator] posit. The bank having refused, this action to recover the amount thereof. Upon the trial the facts were agreed upon. It does not appear that the decedent had any creditors in this state, and it is conceded that the defendant bank in making its payment did so in good faith, without actual notice that letters of administration had been issued in this state. The question thus presented is as to whether the plaintiff, under such circumstances, can recover."

It was held that he could not recover, and that the payment made by the bank to the foreign or domiciliary administrator was in all respects valid. After a careful reading of the opinion we find much of its reasoning and all of its conclusions stated with such admirable clearness and fullness in the syllabus that we have concluded, owing to the length of the opinion, to quote from the syllabus alone, which is as follows:

"The succession to, and the distribution of, the estate of an intestate are governed by the has been appointed and has properly qualified law of the domicile. Where an administrator in the state of the domicile of the intestate, he is vested with power to receive payment of debts and to take possession of assets and give proper the holders of the assets may be, within or acquittances therefor wherever the debtors or without the state; but where the debtor or the holder of the assets is in a foreign jurisdiction, and the debts are not paid or the assets surrendered to the administrator of the domicile, the courts of the foreign jurisdiction will not enforce a recovery of such debts or assets until an administrator has procured ancillary letunder the laws of the state where the debts exters or a new administrator has been appointed ist or the assets are.

"A voluntary payment to a foreign administrator is valid although an administrator has been appointed in the state, it not being the domicile of the intestate, and the person paying having no actual notice of such appointment.

"The fact that the appointment of an adminoffice does not operate as constructive notice istrator is made of record in the surrogate's of such appointment, so as to invalidate a payment subsequently made to an administrator appointed in the state of the domicile of the decedent."

The conclusions expressed in the opinion supra are supported by the numerous authorities cited therein. In view of the admis

instant case, no reason is perceived for dis- [11. JOINT TENANCY 9 ADVERSE POSSESagreeing with the action of the circuit court SION EVIDENCE. in holding that the fourth paragraph of the appellee's answer constituted a complete defense to the action; hence the overruling of the demurrer to the answer and dismissal of the petition was not error. Wherefore, the judgment is affirmed.

SULLIVAN v. SULLIVAN. *

(Court of Appeals of Kentucky. March 8, 1918.)

who were brothers received no interest nor inThe mere fact that one of two joint tenants come from the property does not support a claim of adverse holding by the other, where the property was occupied by their father and mother, who paid the taxes; such an arrangement being a natural one between parent and child, and therefore not to be construed against the child's claim of ownership.

12. PARTITION 4 JOINT TENANCY - CONSIDERATION.

Where two brothers held land jointly, an equal partition was on sufficient consideration, since the conveyance of half the land in severalty to one of them was supported by the consideration of his conveyance of the other half in severalty to the other.

1. DEEDS 64, 65-DELIVERY AND ACCEPT-13. FRAUDULENT CONVEYANCES

ANCE.

In order to pass title under a deed, there

must be an acceptance; but acts which constitute the offer to deliver and the acceptance need not occur at the same time.

2. DEEDS 67 - FAILURE TO ACCEPT FECT.

-

EF

If a deed is executed to two or more persons, and one refuses to accept it, the title to the portion conveyed to him remains in the gran

tor.

3. DEEDS 65-ACCEPTANCE-FORM.

RIGHTS OF JOINT TENANTS.

24(1)

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there was a partition by which each acquired Where two brothers held land jointly, and half the land in severalty, one of them could not establish that the conveyance to the other was void, as in fraud of creditors, since the acceptance by one joint tenant of the conveyance in severalty of half the land did not change the rights of creditors.

14. FRAUDULENT CONVEYANCES

EFFECT AS BETWEEN PARTIES.

172(2)

While the law will not enforce any execuNo particular form is required for accept- tory contract made for the disposition of propance of a deed, and no actual words of accepterty, in fraud of one's creditors, but will leave ance are necessary, but the grantee need only show that it was his intent to accept. 4. DEEDS 65-"ACCEPTANCE"-FORM.

Whenever the grantee elects to claim under the deed, there is an acceptance, and an exercise of ownership over the property is an accept

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7. DEEDS 208(6)—DELIVERY-EVIDENCEACCEPTANCE.

Evidence held to sustain chancellor's finding that one of two joint grantees accepted for himself, though the deed was delivered to the other, who had it recorded.

8. JOINT TENANCY 9-RIGHTS OF PARTIES -ADVERSE POSSESSION.

Where a deed granted land to two brothers jointly, one of them could not become the sole owner by adverse possession, since, owing to the unity of interest, title, and possession, his possession was also on behalf of the other grantee. 9. JOINT TENANCY 9 ADVERSE POSSES

SION.

9- ADVERSE POSSES

In order for one of two joint tenants to establish adverse possession, there must be actual ouster brought home to the other. 10. JOINT TENANCY SION EVIDENCE. Evidence held insufficient to show such adverse holding by one of two joint tenants as to set the statute running in favor of the defendant

tenant.

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Conceding that one joint tenant made repairs on a house and paid taxes, filled up gullies on the land, and repaired fences after he had enjoyed a home on the land for 32 years, and received all the rents and profits during that time, he was not equitably entitled to a lien on the land against the other joint tenants for improvements, in the absence of showing of what the time of their being made, nor without an acthe improvements consisted and their value, or counting for the benefits received by him.

Appeal from Circuit Court, Hickman County.

Action by W. P. Sullivan against James A. Sullivan, wherein defendant filed a counterclaim. From the judgment rendered, James A. Sullivan appeals. Affirmed.

D. G. Park, of Louisville, T. J. Murphy and W. S. Foy, both of Mayfield, and Jno. R. Evans. of Clinton, for appellant. Bennett, Robbins & Robbins and L. L. Hindman, all of Clinton, for appellee.

HURT, J. In the year 1883 Edward P.
Martin Company made to the appellant,
James A. Sullivan, and the appellee, W. P.
Sullivan, brothers, as grantees, a deed of
conveyance, by which there was conveyed to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied April 19, 1918.

ing that he was not to be the owner of the land, but was to fraudulently hold it for James until the latter could satisfy his creditors.

them, jointly, a tract of 80 acres of land. I accepted the deed, but with the understandIn 1908 they executed to each other a deed of partition, by which there was conveyed to each of them, in severalty, about 40 acres of the land. On the 21st day of April, 1915, W. P. Sullivan filed a suit in ejectment against James A. Sullivan to recover from him the possession of the portion of land which William received in severalty under the deed of partition, and to recover from him the rents of the land after the 1st day of January, 1915. James answered, traversing the ownership of William and his right to the possession, and affirmatively set up pleas in avoidance of the deed of 1883 from Edward P. Martin Company and the deed of partition of 1908 so far as the deeds conveyed any title to William, and further asked that if his pleas in avoidance were not sustained that he should be adjudged a lien upon the land for the sum of $1,500, which he alleged that he was entitled to recover from William for the increase in the vendible value of the land caused by valuable and lasting improvements which he had placed thereon, and $150 for taxes which he claimed he had paid upon the land since the year 1908. Issue was joined upon all the affirmative matters in the answer and counterclaim, and upon motion of James the action was transferred to the equity side of the docket. The proof was taken by depositions, and upon the trial the chancellor decided all the issues adversely to the contentions of James, dismissed his counterclaim, and adjudged that William was the owner of the land and entitled to the possession, and awarded a writ of possession

(a) The first ground relied upon for reversal is that William refused to accept the deed made to them, jointly, in 1883, and hence never did have any title to any part of the 80-acre tract of land, and therefore the deed of partition made between them in 1908 was without any consideration passing from William to James for the portion of the land which William received in severalty under the deed. James testified that he negotiated the purchase of the land from Edward P. Martin Company for the sum of $400, of which $133.33 was paid in cash at the time of the delivery of the deed by Edward P. Martin Company, and three notes were executed for the deferred payments; that the name of William was inserted as a joint grantee with him in the deed by him upon the suggestion of their father, and that he paid all the cash payment and executed the notes, signing William's name to the joint notes without authority from William, but upon the suggestion of their father; that he notified William of the facts before the delivery of the deed, and that William expressly refused to assent to the transaction or to have anything to do with it, or to pay any part of the purchase price; that he received the deed and caused it to be recorded and took possession of the land as his own; that thereafter he paid the sum of $90 upon the purchase price, and in 1887 Edward P. Martin

Company sued upon the unpaid notes, obtained a judgment against him and William for

the amount of the notes, and for the enforce

ment of a lien upon the land, and that he alone satisfied the judgment. Upon the other hand, William testified that he and James agreed to purchase the land; that he was present when the deed was delivered and paid one-half of the cash payment; that James signed his name to the notes for the deferred payments, not in his presence, but by his consent; that thereafter he paid onehalf of the remaining unpaid purchase money, including one-half of the sum paid to satisfy the judgment upon the notes for the deferred payments.

in his favor. From this judgment James has appealed, and insists that the chancellor erred in his decision upon all the issues of fact as well as the law pertaining to the facts. James contends that the deed of 1883 executed to him and William jointly did not convey any title to William, because he, as alleged, refused to accept the deed and it was never delivered to him; that William never paid any part of the purchase money; that appellant accepted the deed, took possession of the land, and held it, adversely until 1908, and since that time until the bringing of the suit; that he had, long before 1908, by his adverse possession, become Evidence was given by their mother, broththe sole owner of all the land; that the par-er, sister, and brother-in-law to the effect tition deed of 1908, by which a portion of that from the time of the purchase of the the land was set apart and conveyed to Wil-land in 1883 until the deed of partition was liam, in severalty, was executed and deliv-made in 1908 that James never claimed to ered without any consideration to support own only an undivided one-half interest in it; that he (James) was embarrassed with the land, and admitted that William owned debts, and to prevent his creditors from sell- the other undivided one-half, and after the ing the land or some portion of it for their claims against him that he secured William to enter into the partition deed with him so as to conceal the portion of land allotted to William from his creditors; that William

deed of partition was made James did not assert claim to the portion of the land allotted to William under the deed, but said that it was owned by William. On two occasions before 1908, when James executed a

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