
    CASE 83. — PETITION FOR MANDAMUS BY THE COMMONWEALTH BY ARTHUR E. HOPKINS AND OTHERS
    —Filed in Appellate Court February 8, 1910.
    Commonwealth v. Peter, Judge
    On petition filed in Court of Appeals.
    Writ denied and petition dismissed.
    1. Mandamus — Subjects of Relief — Settlement of Decedent’s Estate — “Writ of Mandamus.” — Ky. Stat. 3855 requires a personal representative of a decedent’s estate to return an inventory within a certain time after qualifying. Sec. 3857 provides that any personal representative failing to return an inventory within six months after qualifying shall be fined by the county court, and be required to make such inventory upon a day fixed by it, and, upon failure to do so, shall be fined for each subsequent delinquency, and section 3858 requires every personal representative to have his accounts settled, and all settlements and vouchers returned to the county court within a certain time, and as often thereafter as the court requires. Civil Code of Practice, section 477, defines the “writ of mandamus” as an order of a court commanding an executive or ministerial officer to. perform or omit an act, the performance or omission of which is enjoined by law, which shall be granted on the motion of the i . party aggrieved or of the commonwealth when the public interest is affected. Held, that the duty of a county judge to require executors and administrators to file inventories and make settlements was mandatory, and not a matter of judicial discretion which could not be enforced by mandamus.
    2. Mandamus — Persons Entitled to Relief — Settlement of De cedents’ Estates. — The commonwealth could maintain mandamus to compel such inventory and settlement, though its sole object in obtaining the relief was to secure evidence for the enforcement of the inheritance taxes.
    3. Courts — Appellate Jurisdiction — Issuance of Prerogative Writs — Mandamus.—Even if the Court of Appeals has authority to issue mandamus to control the action of inferior tribunals, such as the county courts, it will not do so; peth tioner having an adequate remedy by applying to the circuit court for the writ. - •
    M. J. HOLT, JOSEPH SELLIGMAN and C. H. SEARCY for plaintiff.
    "vVM. MARSHALL BULLITT, ALVIN T. SHAPINSKY and BUL-LITT & BULLITT for defendant.
   Opinion op the Court by

Chiep Justice Nunn.

The record of this case was misplaced for some time, hence the delay in writing the opinion.

The county attorney of Jefferson county, Arthur E. Hopkins and Holland L. Anderson, revenue agents for the state at large, filed in this court their petition, asking a writ of mandamus to compel the defendant, Arthur Peter, as county judge of Jefferson county, to require the Fidelity Trust Company of Louisville, Ky., to file, as executor of the estates of Underwood, Hart, Walsh, Mackey, Barth, Bonnie, Parr, Leeds, and Bodine, with the county court clerk of Jefferson county, an inventory of the estate of each of the persons named, and to compel it as such executor to make settlements of its accounts, and return same to the county court, of the estates of Underwood, Walsh, Parr, and Leeds, it having been execu-' tor of these estates for more than two years without ever filing an inventory or making a settlement of any or either of these estates. It appears from the petition that the revenue agents named in connection with the county attorney had previously brought actions in the county court to compel the listing of omitted property on the part of some of the estates named, under section 4241, Ky. St., and against the others, that the state might collect the inheritance tax under the act of 1906 (Laws 1906, c. 22).

It is contended that the defendant under the law-exercises judicial discretion with reference to requiring inventories and settlements of estates of deceased persons to be filed; and therefore the court has no right to compel him by mandamus to act in the matter. The defendant’s position is correct, if right in the assumption that his duties with reference to this matter are judicial. Section 477, Civ. Code Prac., defines a mandamus as follows: “The writ of mandamus, as treated of in this chapter, is an order of a court of competént and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law, and is granted on the motion of the party aggrieved, or of the commonwealth when the public interest is affected.” In the case of Board of Trustees of Firemen’s Pension Fund v. McCroy, 116 S. W. 326, 21 L. R. A. (N. S.) 583 (to be officially reported), this court said: “The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose, but when they refuse to act in a case at all, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them — that is, a service which they are bound to perform without further question — then, if they refuse, a mandamus may be issued to compel them.” It will be observed from the section of the Code and the authority last cited that when an official has a ministerial duty to perform, one fixed by law, and he fails to perform it, a mandamus may be issued to compel him to do so. This court has in at least two eases decided that the requirements of sections 3855, 3857, 3858, Ky. St.,, and of the act of 1906, imposing an inheritance tax, axe mandatory in so far as they impose duties upon the county judge to require administrators and other officials to file inventories and make settlements of the estates in their hands, which.are matters of public interest. See the cases of Commonwealth v. Gaulbert’s Admr., 119 S. W. 779 (to be officially reported), and Dants, Executor, v. Cooper, County Judge, 123 Ky. 359, 96 S. W. 454, 29 Ky. Law Rep. 778. In the last case cited this court said: “Administrators and executors of decedent’s estates represent not only the creditors thereof, and those whom the statutes have designated to take by inheritance or devise, but they are representatives also of the state in administering such estates. In the execution of their duties they discharge to a certain extent functions affecting the public; for it is deemed a matter of public concern that their administration of decedent’s estates shall be made matters of public record. Their failure to comply with the requirements of the law in the execution of their duties is of course a matter that may be subject of complaint by any one directly concerned, whether a creditor or inheritor. But their failure is also a matter of public concern. The language of the statute above quoted is mandatory. No discretion is vested in the county court to waive the exactions of the statutes, nor is it material whether some of the devisees were infants, or whether their trustee named in the will, he being of contractual age, and not under disability, could act solely for them in the matter, for, although all were adults, they could not dispense with the law. The county judge was, therefore, under the duty to require the inventory to be filed, and the settlement to be made as directed by the sections of tbe statutes supra. ”

Defendant contends that the purpose of plaintiffs’ counsel was. to have these inventories placed on record to enable them to obtain evidence as to wbat property they bad omitted to list for taxation and to also furnish tbe state evidence of tbe amount of inheritance tax due it; that tbe proceeding, in its nature, is inquisitorial, and therefore tbe defendant was right in refusing to sustain plaintiffs’ motion. This was a matter tbe county judge bad no right to consider. It mattered not, so far as his duties were concerned, for wbat reason they desired to have this record made, or for wbat reason tbe trust company bad failed to comply with its duty by filing inventories and settlements of tbe estates referred to. Tbe statutes referred to are explicit and mandatory. All parties in interest and tbe public were entitled to have the plain mandate of tbe law complied with. Tbe defendant, by bis refusal to sustain tbe motion, made himself amenable to tbe writ of mandamus.

Tbe only question left for determination is: Should this court, if it has the authority, issue tbe writ? This question was before this court in tbe case of Montgomery v. Viers, 130 Ky. 694, 114 S. W. 251, and tbe court said: “Although section 110 of tbe Constitution may confer ample authority upon this court to issue tbe writ in such a case, tbe rule here is that, if tbe applicant has an adequate remedy elsewhere, we refrain from acting under our original jurisdiction. ’ ’ Tbe effect of this is that tbe circuit court, a court of general jurisdiction, should have been applied to for tbe writ; that this court would' not act in tlie matter, even if it liad tlie power, when the applicant had other adequate means for relief.

For these reasons, the writ is denied, and the petition dismissed.  