94 Kan. 153 | Kan. | 1915
The opinion of the court was delivered by
Thomas Nicholson, a resident of Ohio, died in 1857. -He had been twice married. By his first marriage he had two children, William J. and Mary. By his second wife, Margaret Nicholson, he had several children, Levi, Eliza and Katherine and others. Shortly before his death, Thomas and his wife Margaret conveyed to the eldest son, William J., a tract of land in Ohio as an advancement and as his full share in the estate of his father. This- was accepted by William J.
Mary, the eldest daughter of Thomas, died in 1860, and while her stepmother. Margaret was subjected to some litigation on account of some bargain over Mary’s interest in her father’s estate, it seems to be agreed that at her death Mary still held an interest in her father’s estate; and that interest, as her estate, descended by the laws of Ohio to her brothers and sisters. Mary’s estate was never segregated from her father’s and was never administered. It remained with the estate of Thomas, her father, in the possession and control of Margaret, her stepmother and the widow of Thomas.
William entered the army, and after the civil war settled in Miami county, Kansas, in 1865. Thither also came Margaret and her children in 1867, having sold the Ohio lands comprising the estate of Thomas and incidentally the lands of Mary’s estate, and settled on a farm near Spring Hill. Before leaving Ohio the estate of Thomas was closed and the administrator discharged, and -a settlement was had with Levi and Eliza
Twenty years later, in August, 1898, William J. Nicholson called on his stepmother and told her that by the laws of Ohio he was entitled to the entire estate of the deceased Mary, she being his full sister; and the old lady gave William her promissory notes for $1200 and later paid him that sum in cash out of her personal estate in consideration of this claim. Final payment on these note's was made on March 5, 1900.
Until this claim of William in 1898, during the entire thirty-eight -years since the death of Mary, no claim had been made by any of the heirs for any part of Mary’s estate and Margaret had used it as her own.
In 1903 Katherine, the half-sister of William, informed William that this transaction was not satisfactory, and later, in December, 1903, Levi and Katherine called on William on behalf of their mother, and with her knowledge and approval, and demanded a return of the $1200.
William’s claim to his sister Mary’s entire estate was not well founded, and by the laws of Ohio, brothers and sisters of the half-blood share equally with those of the whole blood. It also appears that there had been a conference among the children of Margaret concerning the payment of this $1200 to William, and that they all agreed, as well as their mother, that the demand for its repayment should be made by Levi and Katherine. Payment was refused.
Margaret Nicholson died on March 19, 1910, but in the meantime some phase of this controversy had been appealed to the supreme court, and a decision as between the original litigants thereon was handed down on July 9, 1910. (Nicholson v. Nicholson, 83 Kan. 223, 109 Pac. 1086.)
On October 3, 1910, the district court sustained a motion to revive the action in the name of Levi, Katherine, and the other heirs — not in the name of Margaret’s personal representative, the administrator. (Civ. Code, § 437.)
“The revivor was properly in the name of the administrator alone.” (Halsey v. Van Vliet, 27 Kan. 474, syl. ¶ 3.)
“A personal representative. This of course means an executor or administrator.” (O’Neill v. Douthitt, 40 Kan. 689, 694, 20 Pac. 493.)
This record shows that Margaret’s estate was then in the hands of an administratrix, and she was the personal representative in whose name this revivor should have been made.
On June 15, 1911, a supplemental petition was filed
On July 26, 1911, at the conclusion of plaintiffs’ evidence, defendant interposed a demurrer to the evidence, and the plaintiffs asked and obtained leave to dismiss their action without prejudice, and the cause was dismissed.
On the same day, July 26, 1911, a new action was filed in the names of- the heirs and Mrs. S. C. Fairchild (Katherine), as administratrix, against William J. Nicholson, which set up with much detail all the foregoing pertinent facts, and emphasizing the point that Margaret did not learn what was the Ohio law of descents and distributions until January, 1907, and alleged a confidential relationship between Margaret and William as stepmother and stepson, mentioning her advanced age of eighty-four years, and praying that
William, the defendant, died on November 19, 1911, and the plaintiffs obtained a revivor against his widow and children. No administrator of William had been appointed in this state, he having removed to California some time before his death. Whether that was proper need not be decided.
In the brief of counsel for appellees this apparently complex proposition is reduced to very simple terms:
“There is but one cause of action stated in the petition, viz: The recovery of a certain fund, the proceeds of the sale of a certain share of the real estate.owned by Thos. Nicholson in Noble County, Ohio, at the date of his death in 1857; that share being the part that his daughter Mary inherited as one of his heirs. The recovery was sought by the plaintiff, Margaret Nicholson, who had been in possession of it and who had paid it to the defendant W. J. Nicholson; both those persons died during the time the action was pending in the trial court and revivor had been had in the names of the brother and sisters of Mary as plaintiffs and against the children and widow of the defendant. It is elementary that the beneficiaries of a trust may join in a suit to recover the fund.”
The case was tried to a jury. The court propounded thirteen special questions on its own behalf, thirty special questions asked by appellant and twenty-nine special questions asked by appellees. Afterwards the court set these findings aside so far as they conflicted with some twenty-two new findings of its own, and gave judgment on the evidence against Huldah J. Nicholson, the widow of William J. Under the pleadings and the evidence, this result can not stand.
Viewed from the three main angles at which at one time and another this action has been threshed out— as an action for the recovery of money paid by mistake ; as a suit to declare a trust; and as an action for an accounting and reciting the earlier steps in the litigation wherein it was sought to recover this $1200 as