94 P. 155 | Kan. | 1908
Lead Opinion
The opinion of the court was delivered by
Three assignments of error have been made: (1) The plaintiff is not the owner of the note and mortgage or the real party in interest; (2) the cause of action is barred by the statute of limitations; (3) the court erred in the admission of evidence. It will be more convenient to consider these in'irregular order.
There are two depositions of Samuel Buchanan. One of them was objected to on the ground that it was not signed by the witness. There is an unsigned stipulation attached to it which apparently was intended to authorize the stenographer to attach the witness’s name to the deposition after it had been transcribed, and it was so signed. The preservation and protection of evidence taken in this way is of too much importance to permit inference and speculation as to the manner in which it was taken. Section 359 of the civil code (Gen. Stat. 1901, § 4807) contemplates that the witness shall subscribe the deposition in the presence of the officer before whom it is taken. The parties, however, may waive these provisions, but if they do the waiver should clearly appear. We think this objection should have been sustained, but in our view of the case the error was immaterial.
It is further urged that the court erred in admitting in evidence the proceedings of the probate court in relation to the estate of John Buchanan, deceased, and of the guardianship of Ira Lee Rutledge, referred to
“The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the-United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.” (U. S. Comp. Stat. 1901, § 905.)
The authentication in question reads:
“The state of Ohio, Carroll County, ss, Probate Court.
“I, Fred W. McCoy, judge and ex-officio clerk of the probate court, within and for the county of Carroll and state of Ohio, do hereby certify that the foregoing is a true copy of the journal entry (journal 18, p. 39) as the same appears upon the records of said court, and I further certify that I have carefully compared the foregoing copy with the original record, and that the same is a full and correct transcript thereof; that I am sole custodian of the records of said probate court, and that this certificate is in the form of law.
“In witness whereof I have hereunto set my hand and affixed the seal of said probate court, at Carroll-ton, Ohio, this 16th day of June, A. D. 1906.
[seal.] Fred W. McCoy,
Probate Judge and ex-officio Clerk of said Court.”
“State of Ohio, Carroll County, ss. Probate Court.
“I, Fred W. McCoy, sole judge of the probate court, within and for said county and state, the same being a court of law and of record, do hereby certify that Fred W. McCoy, whose genuine signature is attached to the foregoing certificate, is, and was at the time of signing the same, ex officio clerk of said probate court, and, as such, full faith and credit are due his acts, and*105 that the above is in due form of law, and made by the proper officer.
“In witness whereof I have hereunto set my hand and affixed the seal of said probate court, at Carroll-ton, Ohio, this 16th day of June, A. D. 1906.
(seal.) Fred W. McCoy, Probate Judge.”
The other certificate is substantially the same, except that the whole matter is embraced in one certificate. We think this sufficient. (Case v. Huey, Adm’r, 26 Kan. 553, 560; Graham v. Troth, 69 Kan. 861, 77 Pac. 92; 17 Cyc. 353; Abbott’s Trial Ev., 2d ed., 669; 1 Bouv. Law Dic. p. 820; 2 Ell. Ev. 590.)
The proceedings show, however, that the application by the administrator for an order to make final distribution, the order of the court in pursuance of such application, the report that such distribution had been made, and the court’s approval thereof, all occurred upon the same day. This probate court is in the state of Ohio. The provisions of the law of that state upon this subject do not-appear in the record of this case, and we must therefore presume it to be the same as the law of this state. (Railroad Co. v. Johnson, 61 Kan. 417, 59 Pac. 1063; Bank v. Nordstrom, 70 Kan. 485, 78 Pac. 804.) Under the statute of this state a valid final settlement and order of distribution cannot be made without notice to the parties interested. (Gen. Stat. 1901, § 2957; Music v. Beebe, Adm’r, 17 Kan. 47.) We do not think the record of the probate court is, therefore, entitled to much weight in determining this controversy. The case should rest upon the other facts found by the court.
It is insisted that when a citizen of the state of Ohio dies the title to his personal property descends to his executor or administrator, and not to his heirs, and, therefore, the ownership of the note and mortgage ’involved in this suit did not pass to Mary Jane Buchanan or to the plaintiff, but they have at all times belonged to the estate of John Buchanan, deceased. Assuming, as we must in the absence of evidence to the contrary,
“If there are no creditors the next of kin entitled to the estate may collect and make distribution among themselves without administration, but the court of probate still has jurisdiction to grant administration, though the estate owes no debts and there is only one distributee.”
Also, in volume 18 of the Cyclopedia of Law and Procedure, at page 62, it is said:
“In a number of states it is held that administration is unnecessary where there are no debts of the estate or the debts have all been paid, the courts considering that when the only duty devolving on an administrator would be to make a distribution of the estate, and the heirs or distributees make or are able to make a satisfactory distribution or disposition thereof themselves, or there is only one heir, administration would be merely a useless ceremony, involving itnnecessary expense, and the same is true where no administration has been applied for and the claims of creditors, if any exist, are barred because they have not been presented to the'probate court within the time limited for that purpose, or by the statute of limitations. But if any of the heirs or distributees demand an administration it must be had.”
“The legal estate only in personal property vests in the administrators; the equitable estate therein is in the heirs, or other persons entitled to distributive portions thereof. The estate of the administrators therein is a trust for that purpose, and is created only for the purpose of laying hold of the estate and making such distribution. When there are no creditors, the heirs or legatees may collect, if they can, the estate together, and make such distribution among themselves as they may agree to and carry into effect, without the intervention of any administrators; and the law favors such arrangements. In such cases it is only where the heirs or legatees fail to make such collection and distribution that administration becomes necessary.
“When such arrangement and distribution have been made and executed, it will be binding, both in law and equity, as between the parties making it, whenever the rights of creditors do not intervene. And where there are no creditors, the heirs or legatees.may divide up and distribute the personal property of the decedent, without converting it into money, in such manner as they see fit; and when such division has been executed, even though it is not such as the decedent has made by his will, or such as the law would make when there is no will, it will be binding upon all the parties to the agreement.” (Page 189.)
In the case of Walworth v. Abel, 52 Pa. St. 370, it was said:
“No doubt the personal estate of a decedent vests in the administrator, but in trust for creditors and heirs or legatees. The mere legal estate passes to the administrator; the equitable descends upon the parties entitled to distribution. If there be no creditors the heirs have a complete equity in the .property, and if they choose, instead of taking letters of administration, to distribute it by arrangement made and executed amongst themselves, where is the principle which forbids it?
“The parties to such an arrangement executed would be forever equitably estopped from disturbing it, as amongst themselves, upon '’the most familiar principles of justice. And why shall the arrangement be*108 broken up by a mere .intermeddler? Family arrangements are favorites of the law, and when fairly made are never allowed to be disturbed by the parties, or any other for them.” (Page 372.)
The following cases are to the same effect: Needham v. Gillett, 39 Mich. 574; Waterhouse v. Churchill, 30 Colo. 415, 70 Pac. 678; McGhee et al. v. Alexander et al., 104 Ala. 116, 16 South. 148; Cox v. Yeazel, 49 Neb. 343, 68 N. W. 485.
In this case there were no debts, except a few of small amount, which were paid. The assets were accessible to the heirs of the intestate, who lived where they could easily confer with each other. The appointment of an administrator was unnecessary, and the expenses incident thereto might well have been avoided. The property belonged to the heirs exclusively, and it seems reasonable and just that they should have the right to divide it among -themselves and own, use and dispose of it in severalty as any other property which they might own.
The only person who could question such a transaction would be a creditor who had been overlooked and not paid. The possibility of that contingency had passed, however, some years before this suit was commenced, by lapse of time, more than three years having passed since the last date on which an administrator might have been appointed. (Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1061; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118, 21 L. R. A. 550; Bank v. King, 60 Kan. 733, 737, 57 Pac. 952.)
The widow and each of the children of John Buchanan, deceased, testified at the trial to the settlement and division of the estate among themselves and the grandchildren of the deceased, and that it was satisfactory to all parties. The great lapse of time since the estate was settled, during which all parties have acquiesced therein and retained the amount received thereby, is sufficient to est»p them from hereafter objecting to the'arrangement. The claim of the plaintiff
This .disposes of the assignments of error. No material error having been shown, the judgment is affirmed.
Rehearing
OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
A petition for a rehearing has been filed in this case which criticizes the court for overlooking questions which the plaintiff in error deems important and controlling in the case. One of the chief questions discussed by the plaintiff in error was.that the appointment of an administrator in this case was imperative because there were debts outstanding against the estate. It appears from the facts contained in the statement of the case, however, that the only debts were a few of very small amounts, and one for $1600, due to the widow for cash of hers loaned by the intestate, who took the notes therefor in his own name. This debt was immediately extinguished by giving to her notes in that amount from those belonging to the estate. To this adjustment every person who could object consented, and has ever since acquiesced therein.
This suit was commenced eleven years after the settlement by the heirs. The plaintiff in error, who objects to this adjustment, is a stranger to the estate and has no interest in its settlement except to protect himself' from double payment of his debt. The danger
The heirs, having participated in this settlement, are estopped from denying its validity. The minor heir was fourteen years of age when the settlement was made. His guardian participated in the division of the assets, and received the share allotted to his ward. This suit was commenced four years after the minor heir had reached the age of majority, and he still retained the property received by him and was satisfied therewith. The age of this minor is not shown in. the findings of fact, but is given in the testimony of his uncle, who fixes it as here stated.
The legal status’of the estate has been considered as of the time when this suit was commenced, rather than of the date when the estate was settled. If the objections and arguments now presented by the plaintiff in
The petition for a rehearing is denied.
