Brubaker v. Jones, 23 Kan. 411

23 Kan. 411 | Kan. | 1880

The opinion of'the court was delivered by

Valentine, J.:

This was an action in the nature of ejectment, brought by the heirs of Franklin Brady, deceased, to' recover certain lands which had formerly belonged to Brady, but which had subsequently been sold and conveyed by Brady’s administrator to the present defendants. The defendants have been in possession of a portion of the land since 1871, under an administrator’s deed, recorded August 24, 1871, and of the other portion thereof since 1872, under another administrator’s deed, recorded August 19,1872. The plaintiffs claim that said sale and conveyance are void for various reasons, which we shall now proceed to consider.

I. The plaintiffs claim that the appointment of said administrator was void, and they urge several reasons therefor, none of which, however, are sufficient, and none of which require any consideration in detail. That Brady was an inhabitant of Allen county, and died intestate, leaving an estate to be settled, are undisputed facts, and these facts are sufficient to give the probate court of Allen county jurisdiction to make the appointment. Whether the probate court adopted the right procedure or not in ascertaining these facts, or in making the appointment, or whether the court appointed the right person or not, are wholly immaterial questions in this controversy. These questions cannot be raised in the collateral manner in which the plaintiffs now seek to raise them. (Taylor v. Hosick, 13 Kas. 518.) The statute does not anywhere prescribe how the jurisdictional facts shall be ascertained; hence the probate court may ascertain them as best it can; and if it ascertain them correctly, that is all that is required. All that is really necessary is, that the jurisdictional facts shall exist as facts; and how the court ascertains them is wholly immaterial. And when the court ascertains these facts and makes the appointment, the letters of administration are themselves prima fade evidence of such facts. It has already been held by this court that the grant of the letters was prima fade evidence of the death of the person on whose estate they were granted. (Seibert v. True, 8 Kas. 52.) In fact, letters of administration, not void upon their face, .are always prima fade valid. They will prove prima fade all facts necessary to be proved in order to make them valid. Now there were no facts proved in this case (except the use of the words “in vacation” in one'place as hereinafter mentioned) having the slightest tendency to show that these letters were invalid. On the contrary, all the facts (with said one exception) tended to show that they were valid. It is said, however, that the probate court did not make the appointment, but that the appointment was made by the probate judge. The record, however, of the appointment shows beyond all doubt that the appointment was made_by the probate court. In every instance the record of such appointment uses the word “court,” and does not use the word “judge.” At the top of the record, however, the words “in vacation,” as well as the words “ probate court,” are used. This, however, merely shows that the appointment was not made at a “regular term ” of the probate court. Section 3 of the act respecting probate courts provides for holding four “regular terms” of the probate court each year, and also provides that “the probate court shall, at all times, be considered open for the granting of letters testamentary and of administration.” (Comp. Laws of 1879, p. 326.) The probate court in Kansas consists of one single judge, and of no other person. So when such judge is present, the whole court is present. This appointment was evidently made by the probate court, but not at a regular term. And here we would say, once for all, that everything that was required to be done in this case before or by the probate court, as a court, was so done and so shown to be done, although in some of the papers made out by the administrator, the administrator speaks of something being •done by the “probate judge,” instead of by the “probate court.” But when the administrator says that he filed a paper in “the office of probate judge,” or that a certain matter was to be heard at “the office of the probate judge,” it can hardly be said that he there used incorrect language, although the paper was in fact filed for the use of the probate court, and the matter was in fact to be heard by the probate court.

II. The notice given by the administrator of the sale of said land closes as follows: “ The said lands are offered for sale, in pursuance of an order of sale of the probate court of said county, the same being necessary to pay the debts of said estate. Terms made known on day of sale.” Whether the terms of sale were in fact made known on the day of sale or not, is not shown, but probably they were; and the property seems to have sold at a fair price, and for cash. At least, no one complained of the sale, and it was confirmed by the probate court. The only objection to the above notice is, that it does not state the terms of the sale. This was an irregularity, (Comp. Laws of 1879, p. 425, §129,) but we do not think that the sale should be held to be absolutely void on account thereof. If any harm resulted therefrom, the party injured should have resisted the confirmation of the sale, and should have moved to set aside the sale, or should have commenced some proceeding whereby equity could have been done to the purchaser, who paid his money in good faith, as well as to the other party. Probably, however, no harm was done by this irregularity, and no court of equity would have set the sale aside.

III. The plaintiffs claim that thé administrator’s deed was and is void, and this claim is made upon the ground that the administrator in drawing the deed used the words “ probate judge” in every instance, where he should have used the words “probate court.” Is this mistake of the administrator fatal? As before stated, the probate court in Kansas consists of one single judge alone, and this judge is the probate judge. The probate judge, whether acting as a judge or as a court, is his own clerk, and has no sheriff, bailiff or other officer connected with his court. (Const., art. 3, §8.) He holds four regular terms of the probate court each year, but his court is always open for the granting of letters testamentary and of administration, and it is always open for “the transaction of such other business as is not required by law to be transacted in term time,” and the probate judge has the “power to hold as many special or adjourned terms [of the court] as the business thereof may require,” (Comp. Laws of 1879, p.326, §3,) and these special or adjourned terms may be held without giving any previous notice to any person — that is, while special business may require a notice to be given to the parties interested, yet no notice is required to enable the court to hold a special or adjourned term of the court. Whenever the judge is present, the whole court is present, clerk and all, and he may hold a special term of the court if he sees proper. This has reference to the law as it existed prior to February 22, 1872. Since that time the court has always been open (except certain Sundays) for all business which could come before it. (Laws of 1872, p.266; Comp. Laws of 1879, p.326, §6.)

There were two administrator’s deeds in the present case, one of which was executed August 22, 1871, and the other was executed August 19, 1872. All the proceedings mentioned in the second deed were had after said law of 1872 took effect, and the proceedings mentioned in the other deed, before. With regard to the settlement of decedents’ estates, and in probate matters, the phrases “probate judge” and “probate court” are nearly synonymous; the probate judge is nearly always the probate court, and the probate court is always the probate judge. There are very few cases in the settlement of decedents’ estates where the probate judge can act merely as a probate judge. In nearly all cases he must act as a court. The plaintiffs have not pointed out a single instance where the probate judge can act in the settlement of decedents’ estates, or in probate matters as merely a probate judge. From the foregoing, it will be seen that it would be almost impossible that any person could be misled by the use of the words “probate judge,” instead of “ probate court,” in said administrator’s deeds. We think the deeds are valid. The judgment of the court below will be affirmed.

All the Justices concurring.