80 Kan. 44 | Kan. | 1909
The opinion of the court was delivered by
The plaintiffs did not state a cause of action against the estate of L. B. Kendall, deceased. The debt for which the action .was brought was not one that accrued against the deceased in his lifetime, and was therefore not a legal demand against the estate. An administratrix may, of course, employ an attorney to assist her in the administration of the estate, or to prosecute or defend actions brought for or against the administratrix in her official capacity, but the obligation to pay for such services rests primarily upon the administratrix. By the employment she makes herself personally liable for the attorney’s fees, and is entitled to an allowance for moneys necessarily paid out for such services as expenses of administration. (Gen. Stat. 1901, § 2969.) To obtain compensation for their services in such a case the attorneys must look to the administratrix as an individual, and not in her representative capacity. The defendant therefore had no authority to bind the estate by her contract with the plaintiffs, and an action to enforce her contract will not lie against her in her capacity as administratrix. (Tucker v. Grace, 61 Ark. 410; Briggs v. Breen, 123 Cal. 657; Sullivan v. Lusk, 7 Cal. App. 186; Lusk v. Patterson, 2 Colo. App. 306; Barker v. Kunkel, 10 Ill. App. 407; Wait v. Holt, 58 N. H. 467; Garnett v. Car
Plaintiffs contend, however, that the averments of' the petition can and should be regarded as setting forth a cause of action against defendant in her individual capacity. The defendant insists, on the other hand,, that the pleadings show that the action was brought against Mary K. Quinton in her representative' character, and that this is manifest in the title to the action, wherein she is designated as “administratrix,” and also in the body of the petition, where there is a detailed statement of her appointment as administratrix and of her qualification at a particular time, and a further statement that she thereafter entered upon the duties of' the office, in which capacity she is still acting. This is. followed, too, by an averment that Mary K. Quinton, “administratrix as aforesaid,” through her agent, employed the plaintiffs and agreed to pay them what the services were reasonably worth. It is the view of the court that the language referred to does not require a holding that the action is one against the defendant in her representative capacity. It is to be observed that the; petition does not in terms state that the defendant is sued as administratrix. In protecting the interests of the estate it was the duty of the defendant to employ attorneys, and plaintiffs may have spoken of her representative character by way of inducement to show that, the claim was just and one for which she could be reimbursed. Since the defendant is liable individually on the contract for such services, and not in her representative character, the reference to her as administratrix should be treated as deseriptio per sonsa. If the cause of action stated be one for which the estate is liable the added words, “administratrix of the estate of L. B. Kendall, deceased,” may be treated as descriptive of representative capacity, but if it be only enforceable against the defendant personally and not officially, as in this case, the added words should be regarded as descriptive of the person and may be rejected as sur
As tending to show the liberal view taken in pleading and practice in somewhat analogous cases, reference may be had, first, to Railway Co. v. Mills, 57 Kan. 687, where a widow, entitled to maintain an action as widow against a defendant who caused the death of her husband, brought an action as administratrix, in which capacity she could not recover. In her petition she described'herself as widow as well as administratrix, and it was held that her averments in regard to her capacity as administratrix might be treated as surplusage, and also that she was entitled to recover as widow. Another case is Railroad Co. v. Menager, 59 Kan. 687, where' a landowner who was prosecuting an action against a railroad company for land taken as a right of way died. The action was then revived in the name.of both his administrator and his heir. The heir died, and the administrator then obtained a revivor in his individual name as successor to the heir. He was required to elect whether he would prosecute the action in his individual name or in his official capacity, and he erroneously elected to prosecute in his individual name; and after a trial, in which all of the facts were brought out, he was permitted to recover as administrator, notwithstanding the erroneous election.
The writer inclines to the opinion that under the averments of the petition the plaintiffs should be held to have brought their action against the defendant in her official capacity. When the court ruled that a cause of action was not stated against the defendant as administratrix plaintiffs were given an opportunity to amend. Instead of striking out the averments in the
The court being of the opinion, however, that a cause of action is stated in the petition, the judgment is reversed and the cause remanded for a new trial.