257 P. 962 | Kan. | 1927
The opinion of the court was delivered by
This is an action by Paul R. Nagle, executor of the estate of N. Davison, deceased, against three sons of the deceased, who are residuary devisees under the.will, for a declaratory judgment as to the ownership of one-third of the wheat crop growing upon certain lands in Stafford county devised under .the residuary clause of the will. The residuary devisees answered admitting there was an actual controversy as to the usual landlord’s share of the wheat crop, but denying any right of the executor thereto, claiming to own the entire crop themselves as devisees of the land upon which it was growing. The court made numerous findings of fact and rendered judgment for the defendants, from which the plaintiff, the executor, appeals.
N. Davison, owner of the land involved, died August 24, 1926, leaving a will directing the payment of his debts, making a specific
“The lands of an intestate descend to the heirs, subject in certain contingencies to the payment of the debts of the intestate. The legal title is in the heirs, and the administrator takes no interest in the real estate, but possesses a naked authority to sell it on license to pay the debts where the personal estate is insufficient.” (p.430.)
It was restated shortly after in the case of Head v. Sutton, 31 Kan. 616, 3 Pac. 280, as follows:
“The rents and profits of the realty of an intestate belong, as against the administrator, to the heirs of the intestate.” (Syl. ¶ 2.)
There is no difference in this respect between the rights of an heir
“The rents, profits and income of a decedent’s real property accruing before his death vest in the personal representative as assets; but those accruing after his death are not assets, but vest in the heir or devisee, even though the rent was expressly reserved to the lessor, his executors, administrators, and assigns; and the fact that the land was sold to pay debts does not deprive the heirs or devisees of their right to rents which accrued between the time of decedent’s death and the time of the sale.”
Since the conclusion of the trial in the district court a stipulation has been filed attempting to submit in a rather unusual way an additional question as to the payment of taxes by the executor on the land involved and the question as to his right to recover the amount so paid. The stipulation couples, this tax question with the claim for one-third of the growing wheat crop as if the wheat might be taken to pay taxes that should have been paid by the owners of the land. We can see no connection between these matters. The executor has the right to pay taxes on land devised when he may need it to pay debts and legacies just the same as he should pay insurance on buildings to protect creditors and charge such expense to the estate, or if he had not already paid them he could sell the x*eal estate subject to the taxes the same as he sells it subject to the mortgage thereon.
“The question in this case is whether it is the duty of the administrator to pay the taxes accumulating on the lands of his intestate subsequent to the death of the intestate. We think not, except when he sells the land. If the administrator needs the lands of the estate with which to pay debts, it is as much his duty to pay all legal charges that may accrue thereon until he sells them, as it is to pay any charges on personal property for the care, preservation and protection of the same while it remains in his custody.” (Reading v. Wier, 29 Kan. 429.)
We see no error in the conclusion of the trial court.
The judgment is affirmed.