34 Kan. 542 | Kan. | 1886
The opinion of the court was delivered by
“Where the property sought to be reached constitutes, as here, the estate of a deceased debtor which has already been subjected to administration and distribution under a special tribunal having jurisdiction of the matter, the rule requiring the existence of special circumstances bringing the case under some recognized head of equity should not only be insisted upon with rigor, but some satisfactory excuse should be given for the failure of the creditor to collect his claim in the mode prescribed by law, before final settlement and discharge of the administrator.” (Cottamore v. Wilder, 19 Kas. 67. See also Johnson v. Cain, 15 Kas. 532, 537, et seq.; Stratton v. McCandless, 27 id. 296.)
No special circumstances requiring the aid of equity have been disclosed in this case. The probate court has yet jurisdiction of the estate, with ample power to adjust and classify defendant’s claim, and to compel its payment out of any funds in the hands of the administrator which are subject to the payment of such debts. It does not appear that he has been, or will be, embarrassed in any way in obtaining relief in that tribunal. He alleges that the administrator has refused to ettle with the probate court; but it does not appear that the
Another claim made by the plaintiff is, that the defendant was unfaithful in the discharge of his trust as administrator, in failing to apply the money collected and received by him for rent upon the taxes assessed against the land. It seems that although the plaintiff obtained the judgment and order decreeing the sale of the land, in May, 1874, and before the death of Myers, it was not sold to satisfy such judgment until December, 1882. The taxes that were levied against the land in the meantime were not paid, and in consequence, penalties and charges to the amount of $2,784.29 were added to the taxes actually levied against the land. When the land was sold to satisfy the plaintiff’s judgment, this amount, in addition to the taxes, was taken out of the proceeds of the sale; and the plaintiff claims to have been damaged to that extent, and he asks judgment against the defendant in that amount. Under the authority of Reading v. Wier, Adm’x, 29 Kas. 429, it was not the duty of the defendant to pay the taxes charged against the land of the estate prior to its sale. . It is true that the default in paying the taxes when they became due very materially diminished the amount received by the plaintiff from the sale of the land, but there was no obligation resting upon the defendant to protect the lien of the plaintiff. The plaintiff obtained his judgment and order of sale long before the tax lien complained of accrued against the land; and no necessity appears, nor is any reason given, for the unusual delay in causing the land to be sold. The order decreeing the sale was given in 1875,, and the sale did not occur for more than eight years thereafter ; and it is not shown that during that time any effort was made by the plaintiff to procure a
The plaintiff makes a further complaint, that certain claims have been presented to and allowed by the administrator as expenses of administration, that are not proper charges against the estate. This is another matter which comes properly within the jurisdiction of the probate court, and for which provision has been made by statute. In §158, ch. 37, Comp. Laws of 1879, it is enacted that upon every settlement of an account by an administrator, all his former accounts may be so far opened as to correct any mistake or error thérein; and §162 of the same act provides that when the probate court, upon a hearing, shall be satisfied that an administrator has used any portion of the estate for his own advantage, or to the injury of the real parties in interest, it shall be the duty of the court to assess the amount found to be a proper charge therefor against the administrator, and for which he shall be liable upon his bond. As the final settlement of the administrator has not been made, any error or overcharge in his accounts may, and properly should be, corrected in the probate court.
We think the demurrer to the plaintiff’s petition was properly sustained by the district court, and its judgment will be affirmed.