Case 40 — 'Action by J, C. Linthecum and Others against Thomas Vowels Executor, for a Settlement of the Estate and an Accounting, &c.

May 26.

#### Linthecum, &c., v. Vowels’ Exr.

APPEAL FROM DAVIESS CIRCUIT COURT-T. F. BIRKH'EAD, circuit JUDGE.

Judgment for Defendant and Plaintiff Appeals.

Affirmed.

Executors and Administrators — Settlement—Effect of Will-Actions — Parties .

1. Under Civ. Code Prac., see. 428, providing that the representatives of the decedent, and all persons having an interest in the property left by the decedent, and all creditors, must he made parties to an action for the settlement of the estate, a petition which omits any of such persons is defective as to. parties.

2. A testator may bind his devisees by designating a time> for the settlement of the accounts of his executor, greater than' that specified in Ky. St. 1903, sec. 3847, permitting actions for the settlement of an- estate to he brought withim less than six months from the appointment of the personal representatives.

SWMENEY, ELLIS & SWEENEY, for appellants

1. There is no rule of law which will prohibit any one of the heirs or devisees from instituting an action against the executor or administrator immediately, after his commission of a breach of his trust.

2. It is charged in the original petition in this suit that the executor refused to “have appraised, advertised or sold” all the personal estate of the deceased as required by the provisions of the'will.

3. The petition avers that the executor converted $505.50 of the personal assets to his own use and this is admitted by the demurrer which was sustained.

4. Appellants contend that since the executor was clothed with the power to sell and convey the real estate he was the only necessary party to the action. While the other devisees may have been proper parties, they were not necessary parties.

5. Although the will provides that “a partial settlement is to be made in twelve months and a complete settlement in two *339years,” we insist that an action for devastavit may he instituted at any time.

6. The jurisdiction of a county court is special and limited, and except as such jurisdiction is expressly conferred on such court to compel a personal representative to return a true inventory and appraisement, that jurisdiction vests alone in a court of equity, and this we have invoked in the circuit court which has general jurisdiction.

7. Appellants are not required to sit by and' .allow an insolvent executor to convert a material part of the estate without having a remedy in some court to compel an accurate appraisement and sale bill.

AUTHORITIES. CITED. .

11 Am. & Eng. Ency. of Law (2 Ed.), .p. 860; Murrell’s Adm’r v. McAllister, 79 Ky., 316; Holland v. Low. Adm’r., &c, 101 Ky., 99; Brand’s Exr. v. Brand, 109 Ky., 721; Carpenter v. Hazelrigg, 103 Ky., 538; Cook v. Farmers’ Bank, &c., 16 Ky. Law Rep., 286.

MILLER & TOI3D, attorneys for appellee

POINTS AND AUTHORITIES.

1. This being an action for a settlement of the accounts of an executor and for a division of the estate of the testator, and having been commenced about one month after the qualification of the executor, when the will provides that the executor can not be required to make even a partial settlement until one year after his qualification the same was prematurely commenced.

2. Although under the Code and Statutes an action for a settlement of the accounts of a personal representative may be commenced as- soon as he qualifies and enters, upon the discharge of his official duties, this is not the rule where the decedent leaves a will where he provides for a different time in which his executor must settle, from that prescribed by law, in the absence of a will provision regulating the subject, in which event the will must control. Trimble’s Executor v. Lebus, 94 Ky., 304.

3. Under section 3847, Kentucky statutes, six months must run after the *date oí the*qualification of the first personal representative of the decedent’s estate before any action shall be commenced against any executor or administrator thereof, except to settle the estate, or against an executor *de son tort.*This is uot an action against an executor *de son.*tori, but is an- action for a settlement of the estate of the testator and might be main-*340tamed except for the provision of the testator’s will, which provides that the executor shall not be required to settle until after one year from the date of his qualification.

4. Cited and considered: Schouler’s Executors and Administrators, sec. 537; Kentucky Statutes, secs. 3857 and 3847.

OPINION op the court by

CHIE'P JUSTICE BURNAM

Affirming.

'The will of Thos. Vowels, a citizen and resident of Daviess county, was probated by the Daviess county court on the 16th of November, 1903, and his son, Tavian Vowels, the named executor thereof, qualified by taking the oath and executing the bond required by law. Appraisers were promptly appointed, and on the 24th of November, 1903, thereafter, filed an inventory and appraisement of the personal estate of decedent in the county court clerk’s office, attested ■by the executor as required by law. On the 14th of December thereafter the executor filed in the office of the county court clerk a sale bill of personalty belonging to the estate of decedent sold by him at public auction on the 5th day of the preceding December. Testator was survived by six children and nine grandchildren, who were the children of a daughter, who married J. C. Lintlieeum. On the 25th of December, J. C. Linthecum brought this suit as next friend of his infant children against the appellee as executor, in which he alleged that the defendant had failed to have appraised certain articles of personal property of the value of $505.50, which belonged to the estate of testator, and prayed, first, that the defendant should be required to settle his accounts as executor; second, that he should be charged with the various articles of personal property alleged to have been omitted from the appraisement and sale bill; and, third, that the land devised by testator should be adjudged to be sold and the proceeds divided among the devisees according to the will. To this petition *341the appellee filed a special demurrer because of a defect of parties defendant, and also a general demurrer, both of which were sustained. Appellant thereafter filed an amended petition in which he made all the heirs and devisees of testator parties to the proceeding, and alleged that the defendant had fraudulently, and with a view of converting to his own use, omitted to have appraised the various articles of personal property recited in his original petition; that he was in the possession of the land devised, and had neither sold nor offered to sell it, and was proposing to use and occupy it for the present year; that there was cash on hand after the payment of the debts of testator of from $150 to $250, which he had failed to divide among the heirs, and prayed as in his original petition. A general demurrer was sustained to the petition as amended, and, plaintiff declining to plead further, the petition as amended was dismissed, and he has appealed to this court.

The main question to be decided upon the appeal is whether a testator can fix a time for the settlement of the accounts of his executor different from that named in the statute, which will be binding on his devisees. Section 428 of the Civil Code of Practice provides who may institute an action for the settlement of the estate of a deceased person. Subsection 2 thereof provides that the representatives of the decedent and all persons having an interest in the property left by the decedent, or any part thereof, and the creditors of the decedent, must be made parties to. the action, plaintiff or defendant. Under these provisions of the Code, we think it quite clear that the trial court properly sustained the special demurrer for defect of parties. Section 3847 of the Kentucky Statutes of 1903 provides that: “Six months must run after the date of the qualification of the first personal representative of a decedent’s estate by a court *342of this Commonwealth, before an action shall be commenced against any executor or administrator thereof, except to settle an estate, or against an executor *de son tort.*Any action brought in violation of this section shall he dismissed with costs.” In construing this section of the statute this court has uniformly held that actions to settle the estates of decedents may be brought within less than six months from the appointment of the personal representatives. See Holland v. Lowe, 101 Ky., 98, 19 R., 97„ 39 S. W., 834; Brand’s Ex’r v. Brand, 109 Ky., 721, 60 S. W., 704, 22 Ky.Law Rep., 1366. There is no question of an executor *de son tort*in the proceeding, and unless controlled by the provision of the will fixing a time for the settlement of the accounts of the executor, appellants having an interest in the property left by the decedent could maintain their action for a settlement under the statute and decisions quoted *supra.*But this case the will of testator not only disposes of his estate among his children, and appoints an executor to execute it, but he has willed and decreed that his administrator “should make a partial settlement with the court at the expiration of one year after entry upon the duties of administration, and that he should be prompt in making final settlement at the end of the second year thereafter.” It is evident from this provision of the will that testator believed that it would be best for his> estate that his executor should have at least one year from the date of his qualification to convert his estate into money and to make a partial settlement ; and that it would require two years for him to finally settle up the estate. Of course, such a provision in the will of a decedent would not be enforceable as against the rights of creditors, but we know of no rule of law which prohibits a testator from fixing a time for the settlement and distribution of his estate among his devisees. If he. has the *343right to' say to whom his estate shall *go,*he can fix the time and manner for settlement and distribution to his devisees.

In Trimble’s Executor v. Lebus, etc., 94 Ky., 304, 15 R., 85, 22 S. W., 329, it was decided by this court that the statute which provides that no administrator or executor, should sell any dividend paying stock, bonds, or other property which the decedent owned at his death until so ordered-by a court of general equity jurisdiction in the county where the letters of administration were granted or the will recorded, did not apply where a testator had by his will invested his executor with discretionary power to make such sales. The statutes required that an executor or administrator shall execute bond with good security. But a testator has the right, notwithstanding the statute, to provide in his will that his executor shall be permitted to qualify without security, and in this way dispose of the provision of the statute. There is no allegation that the executor has not executed a good bond for the estate which came into his hand. And section 3857 of the Kentucky Statutes of 1903 provides a way for enforcing the return of an inventory or sale bill. If, as alleged, the executor has converted to his own use property belonging to the estate, he will be liable therefor on his bond. But this fact, in our opinion, would not be sufficient to justify'the court at the instance of a devisee under the will to disregard its provision as to the time when settlement of the accounts of the executor might be enforced. Besides, it appears to us that appellee was proceeding with sufficient promptness in the discharge of his duty as executor prior to the institution of the suit.

Perceiving no error in the judgment of the chancellor, it is affirmed.