99 Kan. 433 | Kan. | 1917
The opinion of the court was delivered by
This is. an appeal from a decision of the district court in an action in partition. The principal facts may be briefly stated: Patrick Mackey and Bridget Mackey, his
Some time later Jennie commenced this action against Lora and Lora’s mother for the partition of the property of Patrick. Lora’s mother disclaimed. Lora’s guardian ad litem prayed that the residence property, the legal title to which was in her grandfather, Patrick, and the equitable title to which had been in her grandmother, Bridget, should also be partitioned; ;and she claimed rents for the time the plaintiff had exclusively •occupied the residence of Bridget after the latter’s death.
' The court partitioned all the property, and in an incidental accounting gave plaintiff credit for certain expenses in connection with the property, charged her with certain rents collected, and found that the plaintiff had excluded the defendant and should be charged with the rental value of the Bridget' property.
The plaintiff contends that the district court usurped the Jurisdiction of the probate court as to the residence property. We think not. The pending administration of Bridget’s personal estate did not necessarily bar the heirs from their right of immediate partition of the realty. (Raynesford v. Holman, 68 Kan. 813, 74 Pac. 1128; O’Keefe v. Behrens, 73 Kan. 469, 479, 480, 85 Pac. 555.) Cases there may be where partition is wisely deferred until the personal estate is settled, for it may happen that the realty may have to be heavily drawn upon to satisfy the claims against the personal estate. (30 Cyc. 198.) But even in such cases, it is not necessarily error to partition the realty, because it will not be relieved from satis
Again, it should be noted that the plaintiff does not show how the partition of the residence property prejudiced her (Civ. Code, § 581) nor how two partition suits — or partition of her father’s property in the district court and an administrator’s sale of her mother’s in the probate court — would have redounded to her advantage. It would have been more expensive at least.
Touching another point urged, which relates to the finding of the trial court that the plaintiff had excluded her cotenant, Laura, in the occupancy of Bridget’s residence, it may be conceded that such exclusion would never be presumed. (Cribb v. Hudson, ante, p. 65, 160 Pac. 1019.) But there was substantial evidence which tended to establish that fact, and the familiar rule as to trial court’s determination thereon must govern.
The judgment is affirmed.