In re Wolford
10 Kan. App. 283
Kan. Ct. App.
1900
Check Treatment

The opinion of the court was delivered by

Mahan, P. J. :

The record discloses that the probate court assumed jurisdiction not only to try the title to the money but to adjudicate a contract made by the deceased with the petitioner in his lifetime, and to hold the contract invalid for the want of mental capacity on the part of the deceased to enter therein. The petitioner objected to the court entering upon an investigation of the mental condition of the deceased, but her objection was overruled by the court.

We do not deem it necessary to notice the many objections urged to the proceeding. It is not necessary to determine whether the citation in the first instance was properly issued, nor whether the affidavit was sufficient, as the petitioner appeared and submitted to an examination without objection. Nor do we deem it necessary to determine whether the affidavit for the writ of attachment was sufficient, or whether the writ was properly entitled or directed.

We are of the opinion that the probate court was without jurisdiction to try the title or to adjudicate the validity of any contract made between the parties in this summary proceeding, or in fact in any proceeding, nor had it the jurisdiction to enforce the judgment of a debt by contempt proceeding. The statute does not authorize it. The collection of the *286assets of the estate by the administrator cannot be enforced through the probate court except under the provisions of the sections alluded to above, and this summary proceeding is only applicable where the property of the estate remains in specie in the hands of the party against whom the complaint is made at the time the complaint is filed. (See 1 Woerner, Law of Adm. § 151, et seq., and vol. 2, § 325; Dinsmore v. Bressler, 45 N. E. (Ill.) 1086; White v. Gates, 42 Ohio St. 109; Ex parte Hollis, 59 Cal. 405; Larabee v. Selby, 52 Cal. 506; Ex parte Casey, 71 Cal. 269, 12 Pac. 118; Dameron’s Adm’r v. Dameron, 19 Mo. 317.)

The probate court being without jurisdiction to adjudicate the title to the property or to commit for a contempt for a failure to pay money upon an indebtedness to an estate, if such existed, the detention of the prisoner was unlawful, and she must be discharged.