
    Smithers’ Administrator et al. v. Schmitt et al.
    (Decided April 20, 1934.)
    (As Modified on Denial of Rehearing June 15, 1934.)
    
      HARGADON & McNALLY and W. T. McNALLY and C. P. BRADBURY and HARDIN H. HERR for appellants.
    SIMEON S. JACOBS and CHAS. W. CLANCY for appellees.
   Opinion of the Court by

Hobson, Commissioner

Reversing.

On November 15, 1925, Mrs. Kate Smithers died intestate, a resident of Bullitt county, Ky., leaving surviving her as her sole heirs at law Susie Smithers McCormick, Kora Smithers Leaman, and Phillip Smithers. On March 8', 1926, Kora Smithers Leaman qualified as the administratrix of her mother, gave bond, and took into her possession all the personal property of the deceased. On July 5, 1931, Kora Smithers Leaman died intestate a resident of Jefferson county, leaving surviving two daughters, Louise Leaman Schmitt and Eva Leaman Carlton. Thereafter in 1931, Jasper Hagan was_ duly appointed by the Jefferson county court administrator of the estate of Kora Smithers Leaman and gave _ bond. On October 21, 1932, J. E. Chappel was appointed administrator de bonis non of the estate of Kate Smithers, deceased, by the Bullitt county court and duly qualified. On October 21„ 1932, this action was filed by J. E. Chappel as administrator de bonis non, Susie Smithers McCormick and her husband, and Phillip Smithers against Louise Leaman Schmitt, Eva Lea-man^ Carlton, and their husbands, and Jasper Hagan, as. administrator of the estate of Kora Smithers Leaman., It was alleged in the petition, in addition to the facts above stated, that Kate Smithers owned at her death personal property of the value of $1,035.43, also other personal property, the value of which wag unknown to' the plaintiffs; that Kate Smithers Leaman as administratrix of her mother’s estate had made no settlement of her accounts and had not accounted to the plaintiffs Susie Smithers McCormick and Phillip Smithers, who were each entitled to one-third of the estate after the debts were paid. They prayed that the personal representatives of Kora Leaman be required to settle her accounts as personal representative of Kate Smithers before the master commissioner and that the action be referred to the commissioner to report, and for an account and settlement of the estate, and for all proper relief.

The defendants demurred to the petition generally and also specially for the want of jurisdiction in the Bullitt circuit court. The court overruled the demurrer. Later the defendants entered a motion to set aside the order of the previous term overruling the demurrer to the petition, and on April 14, 1933, the court entered an order reciting that the motion had been taken under submission, and concluding with these words:

“And the above styled action coming’ on to be heard and the testimony of the plaintiffs being heard and the court being advised, it is ordered by the court, that the special demurrer of the defendanst, Jasper Hagan, Administrator of the estate of Korah Lea-man, deceased, Eva Leaman Carlton and Joseph Carlton, her husband, be and the same is hereby sustained by the court that the general demurrer of the defendants, Jasper Hagan, Administrator of the estate of Korah Leaman, deceased, be and the same is hereby sustained, to which the plaintiffs except, and it is further ordered.by the court that the above styled action be and the same is hereby dismissed at the plaintiffs’ cost, to all of which plaintiffs except and pray an appeal to the Court of Appeals, which is granted.”

The case is before us on the plaintiff’s appeal. The record does not contain any evidence heard by the circuit court, and it is insisted that the judgment must be affirmed for this reason.

A demurrer admits the truth of' all the allegations in the pleadings demurred to. No evidence can be considered on a demurrer. The only question is this, Does the pleading state a cause of action when all of the facts alleged in it are admitted to be true? If the evidence introduced before the circuit court had been brought here, it would have thrown no light on this question, and therefore the omission of this evidence from the record is wholly immaterial. Louisville & N. R. Co. v. Stewart, 163 Ky. 164, 173 S. W. 757; Thraves v. Bankers’ Oil Co., 196 Ky. 362, 244 S. W. 698; Newman on. Pleading, sec. 540. The only question is, did the petition state a cause of action? By section 65 of the Civil Code of Practice it is provided as follwos:

“An action to settle the estate of a deceased person * * * must be brought in the county in which such personal representative * * * qualified, and for the purpose of a settlement of such estates, such personal representative * * * shall have the same power to sue as had the deceased person.”

It is alleged in the pleading that Kate Smithers died a resident of Bullitt county, and that Mrs. Kora Smithers Leaman qualified as her administratrix in the Bullitt county court. The action to settle the estate of the decedent was properly brought in the county in which her personal representative qualified. The fact that the latter lived in Jefferson county is immaterial, or that her administratrix qualified there. This is simply an action for the settlement of the accounts of the personal representative of Kate Smithers, and was properly, under the statute, brought in Bullitt county. The two children who had received no part of the estate were parties in interest and had a right to bring this suit. The fact that they joined with the administrator de bonis non in no manner affects their rights, and in fact it was proper to join him as a party to the action that the whole matter might be settled in this case. The court erred in sustaining the demurrer to the petition, and should have proceeded to make a settlement of the estate as prayed in the petition, unless a sufficient defense was presented.

Judgment reversed, and cause remanded, with directions to overrule the demurrer to the petition and for further proceedings consistent herewith.  