176 Ky. 91
Court of Appeals of Kentucky.
June 1, 1917.
ACTION: Affirmed.

Appeal from Circuit Court, Leslie County.
Action by F. M. Sackett against the Kentucky Coal Lands Company, William B. King, and James Asher, wherein Dora B. King, later Dora B. Grinstead, executrix of William B. King, was brought in by plaintiff without order of revivor.

From the judgment manifesting rulings dismissing the action as to the executrix and the estate of William B. King, plaintiff appeals.

This action in trespass quare clausum fregit was instituted December 8, 1909, by the appellant, F. M. Sackett, in the court below against the Kentucky Coal Lands Company, Wm. B. King, and James Asher, to recover of them $5,000 damages claimed for the cutting of timber by them on certain lands described in the petition, of which appellant claimed to be the owner and in the possession.

On February 8, 1910, the defendant Kentucky Coal Lands Company filed a separate answer to the petition, alleging its ownership of the title to that portion of the lands, described in the petition, from which the timber was cut, and that it had sold the timber cut to the defendants King and Asher, and had authorized the cutting and removal thereof by them. At the same time, King and Asher filed their joint and separate answer to the petition, admitting the cutting of the timber in question, but denying that appellant owned the title to the land from which it was cut, and alleging that the cutting of the timber by them was under a license from their codefendant, Kentucky Coal Lands Company, which claimed to be the owner of the land. Issue was joined on these pleas by the replies of the appellant.

On November 5, 1910, and before a trial of the case, William B. King, who was a resident of Bell county, died, leaving a last will, which, shortly thereafter, was duly probated in the county court of Bell county, and admitted to record in the office of the clerk thereof. By this will he devised his entire estate to his wife, Dora B. King, who was named in the will as executrix thereof, without bond. The latter accepted the appointment, duly qualified as executrix in the Bell county court, and continued to act as such until her marriage to Robert H. Grinstead, July 23, 1914, which marriage, had the legal effect to annul her further right to act as executrix of the will of William B. King, deceased, and avoid the trust created in her thereby. It does not appear from the record whether any settlement was made of the testator's estate by her as executrix, or whether there was an appointment of an administrator de bonis non with the will annexed, after her marriage to Grinstead.

On September 4, 1911, which was before the marriage of Dora Belle King, now Dora Belle Grinstead, to her present husband, and within one year, and after the expiration of six months from the time she qualified as executrix of the will of William B. King, deceased, the appellant filed a petition in the lower court for a revivor of the action against her, both as the real and personal representative of King, upon which she appears to have been brought before the court by summons, but no order of revivor was then, or at any time thereafter, asked by the appellant or entered by the court. From that time until February 8, 1916, the case was continued by agreement or without objection from term to term, but on the date last mentioned the appellee Dora Belle Grinstead entered in the court below a motion to dismiss the action as to her and as to the estate of William B. King, upon the ground that there had been no revivor of the action subsequent to her qualification as executrix of the will of William B. King, deceased, or after her marriage to Robert H. Grinstead. This motion was sustained, and the action dismissed as to the appellee and the estate of William B. King, deceased. To these rulings appellant at the time excepted, and, from the judgment manifesting same, he now prosecutes this appeal.

The dismissal of the action in the instant case was made after the filing by appellees of the affidavit and the giving of notice to appellant that the motion for its dismissal would be made as of the date indicated by such notice. It is manifest that the filing by appellant of the supplemental petition to obtain a revivor of the action against appellee as executrix of the will of William B. King, though done within a year of the latter's death and of the qualification of the executrix, did not accomplish the object in view, as no order of revivor was then or at any time thereafter asked for or entered. The order of revivor is indispensably necessary. The filing of the petition more than six months after appellee's qualification as executrix and within a year after the death of King, together with the service on appellee of the summons issued thereon, entitled appellant to the order of revivor, which, as the petition therefor was filed in time, might have been entered after the expiration of the year.

If, however, it should be conceded for the purposes of this case that the filing of the supplemental petition and the service upon appellee as executrix of the summons thereon constituted a revivor of the case as to her without an order to that effect, that fact could not have interfered with her right to demand the dismissal of the action as to her, and also as to the estate of William B. King; or have deprived the circuit court of the authority to dismiss the action, as was done, because of appellant's failure after the second marriage of appellee to revive it against the personal representative (appellee's successor) or against the real representatives of King.

Section 3845, Kentucky Statutes, provides:
"A married woman shall not be appointed executor or administrator. The marriage of a woman acting as such shall avoid the trust, and her husband shall not act as such in right of the wife. * * *"

It will be observed that the several sections of the Code, supra, require a revivor when the powers of the personal representative cease, whether by death or marriage; in view of which, and the other authorities referred to, it is clear that the appellant could not, even if there had been a proper revivor of the action before the second marriage of appellee, after her second marriage further prosecute his action against her or the estate of William B. King without reviving it either against her successor as personal representative or against William B. King's real representatives.

It is patent, therefore, that the judgment of dismissal was authorized upon two grounds: First, because no order of revivor was ever made or entered in the case subsequent to the death of the original defendant, William B. King, and prior to the marriage of appellee, although more than 18 months elapsed between his death, the probating of his will, and the qualification of appellee as the executrix thereof, and the date of the latter's marriage to Robert H. Grinstead. Second, because, although more than 18 months elapsed between the second marriage of appellee and the dismissal of the action, no order of revivor was asked or entered against the personal representative or real representatives of William B. King, after such marriage of appellee.

For the reasons indicated, the judgment of the circuit court is affirmed.

Ky.App. 1917.
195 S.W. 103, 176 Ky. 91


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