Brooks v. Brooks

52 Kan. 562 | Kan. | 1894

The opinion of the court was delivered by

JOHNSTON, J.:

This was an appeal from an order of the-probate court of Rooks county making final settlement with Silas N. Brooks, administrator of the estate of Calvin K.. Brooks, deceased, and discharging him and his sureties from all liability on account of the administration bond. The case-was submitted to the court without a jury, and it appeared that at the time of the death of Calvin K. Brooks he was indebted to various parties in about the sum of $1,000. Included in this indebtedness was one note for $850, dated January 4, 1881, due one year after date, drawing interest at-10 per cent, per annum from date, and payable to George ¥. Brooks. The only property of the estate was a quarter section of land in Rooks county, and the administrator obtained an order of the court authorizing the sale of this real estate, with which to pay the debts of the estate. The land was sold under this order for the sum of $1,000. The claim of George W. Brooks against the estate was presented for allowance to the probate court in 1885, when D. H. Budd was probate judge, and the administrator, at the time being present in court, waived formal notice of the presentation of the claim, and upon investigation thereof it was duly allowed by the court, and the administrator was directed to use the proceeds of the sale of the real estate in the payment of the claim. At the time of the allowance, the court failed to make any entry of the proceedings upon its journal or other record, except a brief entry in the record of the presentation of claims. On May 25, 1889, and while John Mullen was probate judge, Silas N. Brooks, as administrator of the estate, presented the accounts to the probate court and asked for a final settlement of the estate, and no record of the allowance of the claim of George W. Brooks being found, a nunc pro tunc order was made by Judge Mullen, authorizing the entry'of the allowance and order for payment made by Judge Budd of the claim of George W. Brooks. This nunc pro tunc order was spread at length upon the records by the former incumbent of the office, Judge Budd.

We think the evidence abundantly sustains the finding of the court that the claim of George W. Brooks was a just and legal charge against the estate, and that it was legally presented and allowed by the court in 1885. The failure of the probate court to make a complete entry of the allowance and order of payment will not deprive the administrator of a credit for the payment of the claim made under the order of the court. The court has a continuing power over its records, and an unquestioned authority to make them speak the truth. The failure to enter the order which the probate court had actually made was not due to the negligence of the administrator, and he should not be deprived of his legal rights by the omission of the probate judge to discharge the duties imposed on him by law.

While there were some irregularities in the administration, there is nothing to indicate wrongdoing by the administrator or the judge of the probate court. Substantial justice appears to have been done in the case, and, as we find no material error, the judgment of the district court will be affirmed.

All the Justices concurring.