100 Kan. 157 | Kan. | 1917
The opinion of the court was delivered by
This is an action to determine the ownership of property. The plaintiff recovered judgment giving her a portion of the property, from which judgment the defendant appeals; and the defendant recovered judgment for a portion of the property, from which judgment the plaintiff appeals.
C. H. Day and Anna Day, his wife, owned real and personal property in Greenwood county. Thé plaintiff was the daughter of C. H. Day and stepdaughter of Anna Day. The plaintiff pleaded, the evidence tended to prove, and the court found that C. H. Day and Anna Day orally contracted with the plain
The facts upon which each of the specifications of error depend are set out as each specification of error is discussed.
“The appellant filed a motion asking the court to strike from the petition of the appellee all the allegations in the petition, in effect, save and except those which alleged the death of Anna Day, the execution and probating of the will and the naming' of Hugh Morrison as executor and the qualification of Hugh Morrison as executor of the will. The same motion asked that the appellee be required to make her petition more definite and certain by attaching a copy of the will.”
The petition may have contained unnecessary allegations, and some of the allegations may have been set out with unnecessary prolixity, but they did not prejudice any substantial right of the defendant. He was fully informed of the nature of the plaintiff’s cause of action. It was within the sound discretion of the trial court to refuse to strike out any part of the petition on the request of the defendant. (Drake v. National Bank, 33 Kan. 634, 639, 7 Pac. 219; Sramek v. Sklenar, 73 Kan. 450, 85 Pac. 566.) Even if some of the allegations should have been stricken out, the refusal of the court to strike them out was not sufficient error to warrant a reversal of the judgment. (Civ. Code, § 581.)
■'“Under the petition as filed in this case, the allegations were direct and positive that Hugh Morrison as executor of the last will and testament of Anna Day deceased was administering upon that estate and had in his possession as such executor the entire estate of Anna Day and no part of said estate could pass from Hugh Morrison, executor of the last will and testament of Anna Day, to Hugh Morrison as an individual, no matter what claim of any kind he might be making to such property until the final settlement of the estate of Anna Day in the Probate Court of Greenwood County, Kansas.”
That part of the petition which set out the interest claimed by Hugh Morrison in the property in controversy was as follows:
“That said last will and testament has been admitted to probate in the Probate Court of Greenwood County, Kansas, and the said Hugh Morrison, defendant above named, has been appointed and is now acting as the executor thereof, and said estate is in the process of settlement and is about to be closed.
“That the said Hugh Morrison is in possession of all of said personal property except such as he may have used for the payment of debts of the said Annie Day, deceased. That said Hugh Morrison refuses to deliver any of said property to this plaintiff. That the said Hugh Morrison also claims the possession of said real property and excludes this plaintiff from the possession thereof.”
The plaintiff claims that portion of the property which will be left after the payment of all claims and debts against the estate of Anna Day. The executor is entitled to the possession of all personal property until the estate has been fully administered, and has power to sell the real property for the payment of debts, if the personal property is insufficient for that purpose. Upon the complete administration of the estate the executor must, under the order of the probate court, turn the property in his possession over to those entitled thereto. Hugh Morrison, who is the executor, claims all the property left after the payment of the debts, under the will of Anna Day. The judgment determines which of the parties to this action is entitled to the property. As between them, the judgment will be conclusive in the probate court on the final distribution of the estate. This conclusion is supported, to some extent, by Railway Co. v. Mills, 57 Kan. 687, 47 Pac. 834; Getty v. Larkin, 59 Kan. 548, 53 Pac. 755; Railroad Co. v. Menager, 59 Kan. 687, 54 Pac. 1043; Barnett v. Schad, 73
"And thereupon the court announces that he finds from the evidence in this case that the allegation's of the plaintiff’s petition are true and that the contract therein stated and set out was in fact entered into between the plaintiff and the deceased C. H. Day and Annie Day in substance as therein alleged. And the court further finds that said contract was by the plaintiff fully carried out and performed in substantial conformity with all the terms and conditions thereof. The court further finds from the evidence and from the admissions of the parties that so far as known at this time all the debts of the said Annie Day have been fully paid and discharged, and there remains nothing to be done in the administration of said estate of Annie Day, except to close said estate and pay the costs of administration in the Probate Court of Greenwood County. And the court further finds that said contract was a lawful contract, and that the plaintiff is. entitled to a specific performance thereof as prayed for in her petition, to which findings, rulings and decisions of the court the defendant at the time duly objected and excepted.
“And thereupon the court further found, that as a matter of equity and justice the said defendant, having performed certain services for the said Annie Day, deceased, during her lifetime, ought to have as his compensation for said services the following described real estate situated in the County of Greenwood and State of Kansas, to wit: . . .
“And the court assigned as a further reason for giving said property to the defendant, that the court believed said land was purchased with money which a brother to the defendant had given the said Annie Day about twenty years ago, and that said property had always been held by the said Annie Day as her separate property, and to which ruling of the court' the plaintiff at the time duly excepted and objected to.
“And thereupon the court announces that the judgment of the court will be for the plaintiff except as to the property above described, and directs a journal entry to be drawn embodying the same.”
These findings of fact and conclusions of law were sufficient to comply with the defendant’s request, in view of the fact that he did not suggest any findings that should be made by the court, and did not request any further or additional findings. The judgment will not be reversed because the court did not make other, additional, or more complete findings of
The district court is directed to modify its judgment and to render judgment for the plaintiff for all the property left after the payment of the debts of the estate of Anna Day.