70 P. 348 | Kan. | 1902
The opinion of the court was delivered by
This was a proceeding instituted in the probate court of Saline county, in the matter of the settlement and distribution of the estate of Nathaniel Head, deceased. O. S. Holden was an heir at law of Nathaniel Head, and was entitled to a share of the estate, which was in course of administration. A partial distribution of the funds belonging to the estate had been ordered by the probate court, and before making distribution the administrators applied to the court for a citation requiring Holden to appear and show cause why certain sums due from him to the estate on account and on a promissory note should not be retained from his distributive share, and that the court should determine and direct.how much should be paid to Holden out of the funds of the estate. In response to the citation, he appeared and alleged that he had no knowledge of any*¿ndebtedness on account; that the note mentioned had been paid at maturity; and, further, that if anything had been due from him to the estate on either accounts or note, it was barred by the statute of limitations. He asked the court to
Upon a hearing the probaté court held that he was indebted to the estate and that the amount of the same should be retained out of his distributive share, and ordered distribution upon that basis. He appealed to the district court, and when he reached that tribunal he asked that the proceedings be dismissed because the probate court was without jurisdiction in such cases. The application was denied, and the court, upon the proof offered, found that Holden was indebted to the estate upon the account and the note in the sum of $902.44, and that the amount should be deemed a part of the fund for the distribution, and retained from the share which the defendant would otherwise 'be entitled to receive.
“That court haying jurisdiction to make distribution of the estate, it follows- as a necessary incident to its jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate.” (See, also, Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435 ; Lietman’s Executor v. Lietman, 149 Mo. 112, 50 S. W. 307, 73 Am. St. Rep. 374; Woern. Adm. §142.)
Any one interested in the distribütion can invoke this jurisdiction, and, therefore, it was competent for the administrators to apply to the probate court to have determined how much of Holden’s share re- ¡ mained to be paid, and as an incident it must decide the -extent of his indebtedness to the estate. It is to be noted that a judgment for the amount of the indebtedness against him was not asked, but it was rather to determine what amount of the fund should be paid to him ; and it may, be further remarked that he appeared in the probate court without questioning its jurisdiction, and. asked for a decision as to the amount of the share to which he was entitled.
In Courtenay v. Williams, 3 Hare’s Ch. 539, the chancellor said that the proper answer to be made to a legatee who asks for the payment of his legacy without first paying his debt, even in a case where the remedy at law for the collection of his debt was barred by the statute of limitations, is : “You ask for a portion of the assets of the testator, but you are yourself a debtor to the testator’s estate, and his assets are diminished pro ta/nto by your default. It is against conscience that you should take anything out of the estate until you have made good what you owe it.”
The supreme court of Indiana in a well-considered case adopted the doctrine that a distributee is not entitled to receive his share while he retains in his own hands a part of the fund out of which his own and the shares of other distributees are to be paid, and that his indebtedness to the estate may be deducted, although a recovery upon the same would be barred
“This right is not one of set-off, but is founded on the principle that the administrator or executor has an equitable lien on the share of the distributee or. legatee until the latter has discharged the obligation which he owes to the estate. The heir or legatee, as the authorities affirm, is not, in accordance with justice or good conscience, entitled to be awarded and receive his share as long as he is a debtor to the estate and thereby has in his own hands a part of the fund upon which the payment of his own share and the shares of others depend. To allow a distributee to receive his share of the fund in the hands of the' administrator for distribution, while the former is in default in the payment and discharge of his own obligations to the estate, would serve to diminish the fund, and result, perhaps, to the prejudice of others. By permitting the distributee to receive his share,^hile he retains a part of the fund in his own hands, out of which his share ought to be paid, might, and frequently would, result in awarding to him a portion of the fund greater than that received by other equally entitled distributees. These principles, in reason, do and must apply when the recovery of the debt which the distributee owes to the estate is barred by the statute of limitation. The statute of limitation is one of repose, and is only a bar to the remedy, and not to the debt itself, simply leaving it unpaid without any legal remedy on the part of the creditor to enforce its payment by suit, in the event the debtor relies on the statute as a defense. Measured, however, by a moral standard, and one in accord with good conscience, the debtor is still under an obligation to pay his debt, although a recovery thereon under the law may be barred by the lapse of time.” (Holmes v. McPheeters, Ind., 49 N. E. 450.)
In Missouri, where the statute is similar to our own, it was said: . •
“It matters not by what name the proceeding is*419 called, whether retainer, advancement, set-off, or assets in the hands of the legatee, the practical result is the same, and it rests upon wholesome principles of right and justice which can be administered in probate courts without the aid of a cohrt of conscience. The reason, necessity and wisdom of the rule is strikingly illustrated in this case, where an insolvent non-resident legatee seeks to diminish the distributive share of ot'hers by claiming a part of the estate, while he owes the estate twice -as much as his legacy amounts to. It is wholly immaterial whether the debt of the legatee is barred by limitation or not, the right to write it.off against the legacy remains unimpaired by any lapse of time.” (Lietman’s Executor v. Lietman, supra. See, also, Tinkham v. Smith, 56 Vt. 187; Armour v. Kendall, 15 R. I. 198, 2 Atl. 311; Rogers v. Murdock, 45 Hun, 80 ; Matter of Bogart, 28 id. 466; Wilson v. Kelly, 16 S. C. 216; Garrett v. Pierson, 29 Iowa, 304 ; Succession of Bougere, 28 La. Ann. 743 ; Coates v. Coates, 33 Beav. 249 ; Fiscus et al. v. Fiscus, 127 Ind. 283, 26 N. E. 831; 2 Woern. Adm. §564 ; Jeffs v. Wood, 2 P. Wms. 128.)
We find no error in the record, and, therefore, the judgment of the district court will be affirmed.