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the parties to be settled and discharged by her husband's estate, distributed and paid its payment to her of $2,000 damages, which the same to the persons entitled thereto. amount was paid by appellee and accepted [1, 2] We have not been referred to nor by her January 27, 1916, in full satisfaction have we found a case decided in this jurisof the damages sustained by the decedent's diction the facts of which were similar to estate for and on account of his death. those presented in the instant case. But, as Which payment and settlement, it was al- the death of the decedent occurred in this leged, was made and consummated without state, and the cause of action arose therein, information or knowledge on the part of ap- the remedy afforded by its law, if an action pellee or the administratrix of the decedent's was necessary, must control as to the recovestate that the appellant had instituted this ery of damages for his death, and by whom action, or been appointed administrator of the action therefor should have been brought. the decedent's estate in Kentucky.

Section 241, Constitution, provides : Appellant filed a general demurrer to the "Whenever the death of a person shall result answer as amended, and each paragraph from an injury, inflicted by negligence or wrong

ful act, then, in every such case, damages may thereof, and, without waiving his right to in- be recovered for such death, from the corporasist upon same, by reply controverted the tions and persons so causing the same. Until affirmative matter of the answer, as amend otherwise provided by law, the action to recover ed, except the fourth paragraph thereof. such damages shall in all cases be prosecuted

by the personal representative of the deceased The circuit court, being of opinion that the

person. The General Assembly may provide matters set up in the fourth paragraph of how the recovery shall go and to whom belong: the answer constituted a good defense, over- form part of the personal estate of the deceased

and until such provision is made the same shall ruled the demurrer, and, appellant failing to person." plead further, his petition was dismissed, By section 6, Kentucky Statutes, it is proand appellee awarded its costs. Appellant vided: complains of the judgment entered in con "Whenever the death of a person shall result formity to these rulings; hence this appeal. from an injury inflicted by negligence or wrongThe following facts are admitted by the ful act, then in every such case, damages may be

recovered for such death from the person or pleadings: (1) That at the time of his death, persons, company or companies, corporation or December 21, 1915, in Pike county, Ky., the corporations, their agents or servants, causing decedent, Compton, was a bona fide resident the same, and when the act is willful or the neg. of Scioto county, Ohio; (2) that appellant, covered, and the action to recover such dam

ligence is gross, punitive damages may be rehy an order of the Pike county court made ages shall be prosecuted by the personal repreJanuary 17, 1916, was appointed and duly sentative of the deceased. The amount recoverqualified as administrator of his estate: (3) ed less funeral expenses and the cost of administhat appellant instituted this action against cluding attorney fees, as are not included in the

tration, and such costs about the recovery, inappellee January 26, 1916; (4) that Belle recovery from the defendant, shall be for the Compton, the widow of the decedent, was, by benefit of and go to the kindred of the deceased an order of the probate court of Scioto coun- deceased leaves either a widow and children or

in the following order, viz. :

* 2. If the ty, Ohio, duly appointed administratrix of a husband and children, then one-half to such his estate January 20, 1916; (5) that the widow or husband and the other one-half to the decedent at the time of his death did not children of the deceased.” own any property in the state of Kentucky

Section 3880, Kentucky Statutes, provides: nor owe any debts therein ; (6) that the ap- such decedent qualified by a court of this com

"If there be an executor or administrator of pellee is a corporation created under the monwealth, he alone shall have power to sue: laws of West Virginia and has its chief of- but any debtor who shall pay his debt, or part fice in that state; (7) that during the time of it, according to the provisions of the forethat intervened between January 20 and going sections; without notice thereof, shall be January 26, 1916, appellee contracted and discharged to the extent of such payment.” agreed with Belle Compton, as administra

It will be seen from the language of this trix of the decedent's estate, to pay her $2, section that authority to bring such action is 000 in full settlement of all damages claim- conferred upon the resident administrator

alone. L. & N. R. R. Co. v. Brantley, 96 Ky. ed by her for his death, and that this sum was paid her by appellee January 27, 1916; Am. St. Rep. 291; Brown v. L. & N. R. Co.,

297, 28 S. W. 477, 16 Ky. Law Rep. 691, 49 (8) that at the time appellee thus contracted 97 Ky. 228, 30 S. W. 639, 17 Ky. Law Rep. and agreed to pay the $2,000 to Belle Comp

145. ton as administratrix in settlement for the

[3, 4] The question we are called upon to death of her husband, this action had not decide, however, is not whether appellant been instituted by appellant, and when the had authority to bring the action, but whethpayment of that sum was later made to her er the settlement of damages made with the January 27, 1916, neither appellee nor Belle widow and Ohio administratrix of the deceCompton had any knowledge of the institu- dent by appellee before its institution, but tion of this action by appellant, nor of his paid the day after its institution admittedly appointment by the Pike county court as ad- ; without knowledge on the part of either of ministrator of the decedent's estate; (9) that 'them that the action had been instituted or after receiving the $2,000 paid her by ap- that appellant had been appointed by the pellee Belle Compton, as administratrix of Pike county court administrator of the dece

dent's estate, constituted a valid defense to decedent is of any greater dignity than a the action. Section 3882, Kentucky Statutes, debt owing to the estate of the decedent. declares that:

As the decedent Compton's wife was ap"A personal representative may compromise pointed administratrix of his estate in Scioto and settle any claim or demand for damages county, Ohio, the county and state of his resgrowing out of injury to or the death of the idence, she is the principal or domiciliary addecedent."

In McFarland's Adm'r v. L. & N. R. R. Co., ministratrix, and the appellant, having been 130 Ky. 172, 113 S. W. 82, we held that the appointed in Kentucky, is an ancillary adcompromise of a claim for damages for the ministrator. The title of a domiciliary repdeath of decedent, made under the authority resentative, unlike that of an ancillary repreconferred by section 3882, by an administra- sentative, extends to all of the decedent's pertor acting under a voidable appointment, was

sonal estate wherever situated, but the title valid and binding upon one appointed admin of the ancillary representative is limited to istrator after the removal of the administra- the assets within the jurisdiction of his aptor making the compromise.

pointment. In 18 Cyc. 1229, in dealing with It is true we have held that a foreign ad- the rights and powers of domiciliary repreinistrator cannot sue in this state for a tort,

sentatives, it is said: and that the words "debts due to such dece- assets in the jurisdiction where the letters are

"Letters of administration extend only to the dents," found in section 3878, Kentucky Stat- granted, and do not confer as a matter of right utes, for which a nonresident executor or ad- any authority to collect assets in another. But, ministrator by giving bond with surety resi- since, a foreign domiciliary representative has

a title to assets wherever situated which may dent of the county in which the action is be recognized in the absence of local creditors brought is therein given authority to sue, do or a local administration, he may under such not include torts (L. & N. R. R. Co. v. Brant-circumstances take possession of property of tho ley, 96 Ky. 297, 28 S. W. 477, 16 Ky. Lawsuit, and his possession will be recognized as

estate if he can do so peaceably and without Rep. 691, 49 Am. St. Rep. 291); but there rightful and protected as fully as if he had taken seems to be nothing in that section or any out local letters of administration. He may alother that would prevent a foreign personal so collect a debt due to the estate if voluntarily representative from receiving in good faith a the debt, and a protection against an action to

paid, and such payment is a valid discharge of debt due his decedent, or money by way of collect the same debt by a domestic representadamages for a tort resulting in the death of tive subsequently appointed; and since debts his decedent, that might in like good faith be seat of government, they may be received by a

due from the United States have no situs at the voluntarily paid by the debtor or tort-feasor, domiciliary representative at any place where or which would prevent the foreign personal the government may choose to pay them.” representative from giving to the payor such See Wilkins v. Ellett, 108 U. S. 256, 2 Sup. an acquittance for the payment as would fully Ct. 641, 27 L. Ed. 718. release him from all future liability for such In Crosswell on Executors and Administradebt or damages. Indeed, as we have already tors, 152, the following statement of the law seen, section 3880, supra, which declares that upon this subject wi be found: an executor or administrator of the decedent, “The main rule or essential point of the rules qualified by a court of this commonwealth, relating to administration in various jurisdic

tions is that the administration which is taken shall alone have power to sue for the death out in the country of domicile of the deceased of the latter, seems to recognize the principle is the principal or domiciliary administration. stated when it further declares that:

Any other administration is ancillary, whether, “Any debtor who shall pay his debt, or part it may or may not be prior in point of time to of it, according to the provisions of the forego- the administration in the domicile of the deing sections, without notice thereof (i. e., with- ceased. The reason for this distinction is eviout notice of the qualification of the resident is the basis of administration is governed by

dent in the fact that the personal estate which personal representative or of a suit by him to the laws of the domicile of the deceased, and all recover the debt), shall be discharged to the extent of such payment."

questions as to the settlement and distribu

tion of that estate should be settled by the laws Obviously, if the voluntary payment of a of that country or state.” debt under such circumstances to a nonresi Again in the same volume at page 153 it is dent personal representative would operate said: as a discharge to the debtor, for the same "There are, however, points in which the exreason would the settlement of a claim of istence of the principal administration affects damages with the foreign personal represent the ancillary administration. Thus the princiative and the payment to the latter of the eral creditors, heirs, and next of kin, has such an

pal administrator, since he represents the genamount of damages agreed upon in the settle- interest in the proceedings in another state ment operate as a discharge to the payor, that he is entitled to appear in time, and take if such payment were made and accepted in such steps therein as may seem suitable and le

gal; for example, he may appeal from a decree good faith and without knowledge upon the of a judge of probate appointing an ancillary adpart of the payor or payee that there had ministrator." been a resident personal representative ap We think it undoubtedly true that the pointed, or a suit instituted by the latter for domiciliary administratrix could have gone the recovery of the claim for damages thus into the state of West Virginia, where apsettled. No reason is perceived for holding pellee was incorporated, and where it has that a claim for damages for the death of the its corporate residence, and there main

tained an action aaginst it on account of the "Frieda Maas died at her residence in Guttendeath of her husband, which occurred in berg, Hudson county, state of New Jersey, on the state of Kentucky through the negligence surviving a son and daughter, both minors and

the 15th day of November, 1898, lcaving her of appellee, by pleading the constitutional residents of the same place. On the 23d day of provision and those of the statute of Ken- August, 1899, the surrogate of Hudson county, tucky giving a cause of action for his death; N. J., issued letters of administration upon her

estate to Frederick Maas, a brother of her deor, if prohibited by the laws of West Vir- ceased husband. After his appointment he preginia from so doing, the action could have sented a certified copy of his letters of adminbeen instituted through an administrator ap- istration to the defendant bank, together with pointed in that state by pleading the laws of him of the amount which the decedent had upon

her passbook, and demanded the payment to Kentucky authorizing the recovery, and there- deposit, and thereupon the bank paid over such by maintained the action under the comity balance to him. Prior thereto, and on the 9th existing between the two states. The domicil-day of March, 1899, the plaintiff, Charles Maas, iary administratrix went into the state of band, applied and had issued to him letters of

another brother of the decedent's deceased husWest Virginia, and there made settlement administration upon her estate by the surrowith appellee, and was paid by it $2,000 ac- gate of New York county in this state, and aftcepted in satisfaction of the damages claimed er the defendant bank had paid the amount on on account of his death. This we think she in New Jersey, he served a notice of his ap

deposit with it to the administrator appointed had the authority to do under the general pointment upon the defendant and demanded power conferred upon her by law as domicil. the payment to him of the amount of such deiary administratris to receive for the estate posit, The bank having refused, this action

was brought [by the New York administrator] anything in the way of property or money to recover the amount thereof. Upon the trial that could be regarded as assets thereof, the facts were agreed upon. It does not appear which might voluntarily be delivered or paid that the decedent had any creditors in this her; and it is admitted by the pleadings in making its payment did so in good faiths, with

state, and it is conceded that the defendant bank that no one had been appointed or qualified out actual notice that letters of administration as administrator of the decedent in West had been issued in this state. The question thus Virginia.

presented is as to whether the plaintiff, under

such circumstances, can recover. It is further admitted by the pleadings that whatever amount of damages the appellee

It was held that he could not recover, and may have been or is liable for on account of that the payment made by the bank to the the death of John Compton will have to be foreign or domiciliary administrator was in distributed in accordance with the laws of all respects valid. After a careful reading the state of Ohio, and that the $2,000 dam- of the opinion we find much of its reasoning ages which the domiciliary administratrix and all of its conclusions stated with such received of appellee she has distributed as admirable clearness and fullness in the syllarequired by the laws of that state. So, if it bus that we have concluded, owing to the were conceded that the appointment of ap- length of the opinion, to quote from the sylpellant as administrator by the Pike county labus alone, which is as follows: court was authorized, as there were no debts "The succession to, and the distribution of, owing by the decedent in this state, it would the estate of an intestate are governed by the have been the duty of appellant, if he had re- has been appointed and has properly qualified

law of the domicile. Where an administrator ceived the $2,000 paid by the appellee to in the state of the domicile of the intestate, he transmit the money, less the cost of adminis- | is vested with power to receive payment of debts tration, to the domiciliary administratrix for and to take possession of assets and give proper distribution in accordance with the laws of the holders of the assets may be, within or

acquittances therefor wherever the debtors or the state of Ohio. In other words, the princi- without the state; but where the debtor or the pal object of the law in requiring the ancil holder of the assets is in a foreign jurisdiction, lary administration in Kentucky was to aid and the debts are not paid or the assets sur

rendered to the administrator of the domicile, the foreign or domiciliary administratrix in the courts of the foreign jurisdiction will not the collection of the claim for da ges enforce a recovery of such debts or assets until against appellee because she could not compel an administrator bas procured ancillary, let. the payment of such damages by suing as under the laws of the state where the debts ex

ters or a new administrator has been appointed administratrix in the state of Kentucky. So ist or the assets are. in the case here presented we find that by the "A voluntary payment to a foreign adminisvoluntary payment of $2,000 in damages made trator is valid although an administrator has by appellee to her the domiciliary administra- domicile of the intestate, and the person paying

been appointed in the state, it not being the trix obtained an apparently fair settlement having no actual notice of such appointment. for the death of the decedent, without the as

"The fact that the appointment of an adminsistance of the resident administrator and office does not operate as constructive notice

istrator is made of record in the surrogate's without such cost to the estate as would of such appointment, so as to invalidate a payhave attended his collection of the deman ment subsequently made to an administrator apby suit.

pointed in the state of the domicile of the do

cedent." The view we have expressed of the law of this case is fully sustained by the case of The conclusions expressed in the opinion Maas v. German Savings Bank, 176 N. y. supra are supported by the numerous author377, 68 N. E. 658, 98 Am. St. Rep. 689, the ities cited therein. In view of the admisfacts of which are thus stated in the opinion: sions of fact made by the pleadings in the

ance.

instant case, no reason is perceived for dis- 11. JOINT TENANCY Cm 9 - ADVERSE Possesagreeing with the action of the circuit court

SION-EVIDENCE. in holding that the fourth paragraph of the who were brothers received no interest nor in

The mere fact that one of two joint tenants appellee's answer constituted a complete de come from the property does not support a fense to the action; hence the overruling of claim of adverse holding by the other, where the demurrer to the answer and dismissal the property was occupied by their father and

mother, who paid the taxes; such an arrangeof the petition was not error.

ment being a natural one between parent and Wherefore, the judgment is affirmed. child, and therefore not to be construed against

the child's claim of ownership.
12. PARTITION 4 — JOINT TENANCY - Con-
SIDERATION.

Where two brothers held land jointly, an
SULLIVAN v. SULLIVAN. *

equal partition was on sufficient consideration,

since the conveyance of half the land in sever(Court of Appeals of Kentucky. March 8,

alty to one of them was supported by the con1918.)

sideration of his conveyance of the other half in

severalty to the other. 1. DEEDS Em 64, 65-DELIVERY AND ACCEPT

13. FRAUDULENT CONVEYANCES Cm 24(1) ANCE.

RIGHTS OF JOINT TENANTS. In order to pass title under a deed, there

Where two brothers held land jointly, and must be an acceptance; but acts which constitute the offer to deliver and the acceptance half the land in severalty, one of them could not

there was a partition by which each acquired need not occur at the same time.

establish that the conveyance to the other was 2. DEEDS O 67 FAILURE TO ACCEPT Er

void, as in fraud of creditors, since the acceptFECT.

ance by one joint tenant of the conveyance in If a deed is executed to two or more per: severalty of half the land did not change the sons, and one refuses to accept it, the title to the rights of creditors. portion conveyed to him remains in the gran- 14. FRAUDULENT CONVEYANCES Fw172(2) tor.

EFFECT AS BETWEEN PARTIES. 3. DEEDS C 65-ACCEPTANCE-FORM.

While the law will not enforce any execuNo particular forin is required for accept- tory contract made for the disposition of propance of a deed, and no actual words of accept: erty, in fraud of one's creditors, but will leave ance are necessary, but the grantee need only the parties where it finds them, yet where a conshow that it was his intent to accept.

tract has been executed by the execution and 4. DEEDS 65—"ACCEPTANCE"-FORM. delivery of a deed of conveyance, though made in

Whenever the grantee elects to claim under fraud of the grantor's creditors, the title passes the deed, there is an acceptance, and an exer to the grantee, and the grantor cannot resist a cise of ownership over the property is an accept- recovery of the property by the grantee, upon

the sole ground that he made the deed for the [Ed. Note.--For other definitions, see Words purpose of defrauding his creditors. and Phrases, First and Second Series, Accept- 15. ADVERSE POSSESSION Om 10 TIME OF ance.]

POSSESSION. 5. DEEDS 208(6) ACCEPTANCE JOINT Adverse possession of lands from 1908 until GRANTEES-RECORDING.

bringing of suit in 1915 is insufficient to estabThat the grantor of a deed to plaintiff and lish title. defendant delivered it manually to defendant, 16. JOINT TENANCY 8 - PARTITION EFwho caused it to be recorded, was not conclusive FECT. that plaintiff did not accept the deed for himself. Conceding that one joint tenant made re6. DEEDS 65-ACCEPTANCE-JOINT GRAN- pairs on a house and paid taxes, filled up gullies TEES-RATIFICATION.

on the land, and repaired fences after he had If one of two joint grantees was present at enjoyed a home on the land for 32 years, and the delivery of the deed to the other, and paid received all the rents and profits during that half of the cash payment, and thereafter claimed time, he was not equitably entitled to a lien on under the deed, he ratified the acceptance by the the land against the other joint tenants for imother.

provements, in the absence of showing of what 7. DEEDS em 208(6)—DELIVERY-EVIDENCE

the improvements consisted and their value, or

the time of their being made, nor without an acACCEPTANCE.

Evidence held to sustain chancellor's finding counting for the benefits received by him. that one of two joint grantees accepted for him Appeal from Circuit Court, Hickman self, though the deed was delivered to the other, County. who had it recorded.

Action by W. P. Sullivan against James 8. JOINT TENANCY 9—RIGHTS OF PARTIES -ADV’ERSE POSSESSION.

A. Sullivan, wherein defendant filed a counWhere a deed granted land to two brothers terclaim. From the judgment rendered, jointly, one of them could not become the sole Janies A. Sullivan appeals. Affirmed. owner by adverse possession, since, owing to the unity of interest, title, and possession, his pos D. G. Park, of Louisville, T. J. Murphy session was also on behalf of the other grantee. and W. S. Foy, both of Mayfield, and Jno. 9. JOINT TENANCY Cm9 ADVERSE POSSES- R. Evans, of Clinton, for appellant. BenSION,

nett, Robbins & Robbins and L. L. Hindman, In order for one of two joint tenants to establish adverse possession, there must be actual all of Clinton, for appellee. ouster brought home to the other. 10. JOINT TENANCY C9 - ADVERSE POSSES HURT, J. In the year 1883 Edward P. SION—EVIDENCE.

Martin Company made to the appellant, Evidence held insufficient to show such ad- James A. Sullivan, and the appellee, W. P. verse holding by one of two joint tenants as to set the statute running in favor of the defendant Sullivan, brothers, as grantees, a deed of tenant.

conveyance, by which there was conveyed to

Wow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied April 19, 1918.

them, jointly, a tract of 80 acres of land. , accepted the deed, but with the understandIn 1908 they executed to each other a deed ing that he was not to be the owner of the of partition, by which there was conveyed land, but was to fraudulently hold it for to each of them, in severalty, about 40 acres James until the latter could satisfy his credof the land. On the 21st day of April, 1915, | itors. W. P. Sullivan filed a suit in ejectment (a) The first ground relied upon for reagainst James A. Sullivan to recover froin versal is that William refused to accept the him the possession of the portion of land deed made to them, jointly, in 1883, and which William received in severalty under hence never did have any title to any part of the deed of partition, and to recover from the 80-acre tract of land, and therefore the him the rents of the land after the 1st day deed of partition made between them in 1908 of January, 1915. James answered, trav- was without any consideration passing from ersing the ownership of William and his William to James for the portion of the land right to the possession, and affirmatively set which William received in severalty under up pleas in avoidance of the deed of 1883 the deed. James testified that he negotiated from Edward P. Martin Company and the the purchase of the land from Edward P. deed of partition of 1908 so far as the deeds Martin Company for the sum of $400, of conveyed any title to William, and further which $133,33 was paid in cash at the time asked that if his pleas in avoidance were of the delivery of the deed by Edward P. not sustained that he should be adjudged a Martin Company, and three notes were exelien upon the land for the sum of $1,500, cuted for the deferred payments; that the which he alleged that he was entitled to name of William was inserted as a joint recover from William for the increase in grantee with him in the deed by him upon the the vendible value of the land caused by suggestion of their father, and that he paid valuable and lasting improvements which all the cash payment and executed the notes, he had placed thereon, and $150 for taxes signing William's name to the joint notes which he claimed he had paid upon the land without authority from William, but upon since the year 1908. Issue was joined upon the suggestion of their father; that he notiall the affirmative matters in the answer fied William of the facts before the delivery and counterclaim, and upon motion of James of the deed, and that William expressly rethe action was transferred to the equity side fused to assent to the transaction or to have of the docket. The proof was taken by dep- anything to do with it, or to pay any part ositions, and upon the trial the chancellor of the purchase price; that he received the

deed and caused it to be recorded and took decided all the issues adversely to the con

that tentions of James, dismissed his counter- possession of the land as his own; claim, and adjudged that William was the thereafter he paid the sum of $90 upon the owner of the land and entitled to the pos- Company sued upon the unpaid notes, obtain

purchase price, and in 1887 Edward P. Martin session, and awarded a writ of possession ed a judgment against him and William for in his favor. From this ju ment James

the amount of the notes, and for the enforcehas appealed, and insists that the chancellor ment of a lien upon the land, and that he erred in his decision upon all the issues of alone satisfied the judgment. Upon the othfact as well as the law pertaining to the

er hand, William testified that he and James facts. James contends that the deed of 1883 agreed to purchase the land; that he was executed to him and William jointly did not present when the deed was delivered and convey any title to William, because he, as paid one-half of the cash payment; that alleged, 'refused to accept the deed and it James signed his name to the notes for the was never delivered to him; that William deferred payments, not in his presence, but never paid any part of the purchase money; by his consent; that thereafter he paid onethat appellant accepted the deed, took pos- half of the remaining unpaid purchase monsession of the land, and held it adversely ey, including one-half of the sum paid to until 1908, and since that time until the satisfy the judgment upon the notes for the bringing of the suit; that he had, long be- deferred payments. fore 1908, by his adverse possession, become

Evidence was given by their mother, broththe sole owner of all the land; that the parer, 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 deed of partition was made James did not claims against him that he secured William assert claim to the portion of the land alto enter into the partition deed with him so lotted to William under the deed, but said as to conceal the portion of land allotted to that it was owned by William. On two occaWilliam from his creditors; that William sions before 1908, when James executed a knew of his fraudulent purpose, and so mortgage upon the land to secure debts

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