10 P.2d 846 | Kan. | 1932
The opinion of the court was delivered by
This is an original proceeding in mandamus to compel the probate judge of Butler county to make an order for the final settlement of the estate of W. F. Oberst, deceased, finding that the plaintiff is the sole heir of the deceased and requiring Fred Oberst, administrator of the estate, to turn over to plaintiff, as such sole heir, the assets of the estate. An alternative writ was issued. The probate judge has made no answer or return thereto. The administrator has filed an answer. Affidavits on behalf of plaintiff have been filed and he has moved that a peremptory writ issue.
The facts disclosed by the record are not seriously controverted and may be thus stated: On April 20, 1928, W. F. Oberst, a farmer residing in Butler county, his wife and five of their children were killed and the home in which they were living was burned. The circumstances indicated they had been murdered. Plaintiff is the only surviving child of W. F. Oberst and wife. He was charged with the murder of each of them. In July, 1929, charges against plaintiff for the murder of his mother, his sisters and brothers, were dismissed. Plaintiff was prosecuted for the murder of his father. Certain questions relating to that, prosecution have been heretofore
On April 25,1928, Fred Oberst, a brother of W. F. Oberst, was by the probate court of Butler county appointed as administrator of the estate of W. F. Oberst, deceased, and duly qualified as such administrator. In the affidavit and petition for appointment signed by Fred Oberst it was recited that W. F. Oberst died intestate, leaving personal property of the probable value of $7,000, and leaving as his heir Owen Oberst, who is the plaintiff herein. After the arrest of Owen Oberst for the murder of his father, Fred Oberst filed in the probate court an affidavit, supplemental to the petition for letters of administration, in which it was recited that since, the granting of letters of administration Owen Oberst had been charged with the murder of-his father, which charge was then pending in court, and that the affiant does not know and is unable to state who is entitled to the property of W. F. Oberst, or to state who is his heir, or heirs, at law. Fred Oberst proceeded with the administration of the estate of W. F. Oberst, deceased, and among other things converted the personal property into cash and invested most of it in government bonds and retained the custody of the same for the benefit of the estate. The house which burned at the time of the death of W. F. Oberst was insured. Among other things, the administrator brought an action in the district court on the insurance policy. This action pended in court awaiting the outcome of the criminal prosecution against Owen Oberst.
Perhaps anticipating that the criminal action against Owen Oberst would be dismissed, the administrator, Fred Oberst, on 'August 28, 1931, filed his final account as such administrator in the probate court and served notice of the final hearing on such account and request for order of distribution to be had on October 2, 1931, and gave due notice thereof, as provided by statute (R. S. 22-904). On that date the hearing was continued to October 12, to permit the order dismissing the criminal action to be made, which was done on October 10. On October 12, 1931, the matter of the approval of the final account of the administrator, determining who were the heirs of W. F. Oberst, deceased, and making an order for final distribu
Fred Oberst then presented his resignation as administrator of the estate of W. F. Oberst, deceased, which resignation was accepted by the court after a hearing. Counsel for Owen Oberst then suggested the appointment of Owen Oberst and John Madden, Jr., one of his attorneys, as administrators of such estate. They also requested the matter be continued until the next day, which request was granted. On the next day Fred Oberst presented for approval his final account, which had been brought up to date. This was examined and approved by the court. This showed that the administrator, after paying a sum allowed by the court for his services and that of his attorney, had on hand $980.69 in cash, eight government bonds of $1,000 each, and one of $500, and several certificates for shares in farm cooperative associations. No objections were taken to any item of the account or to the order of the court approving the same. The administrator, Fred Oberst, was ordered to bring this property into court for delivery to the administrator to be appointed by the court.
Thereupon, on the application of Owen Oberst, Harry B. Garden was appointed and qualified as administrator de bonis non of the estate of W. F. Oberst, deceased. The matter was then adjourned to October 14, and on that day to October 15. On that day Harry B. Garden, in person and by his attorney, appeared and moved the court to set aside his appointment, and after argument thereon the motion was allowed. The matter was then continued until October 16, and on that date until October 19. On that date Owen Oberst appeared, and as sole heir of W. F. Oberst, deceased, moved the court to make an order of distribution of the estate and to require Fred Oberst to turn over to him the property in his hands belonging to said estate, for the reasons: That the estate had bpen fully administered; that more than three and one-half years had expired since the administrator was appointed; that all debts of the estate had been paid or barred; that the administrator had filed his final account, which had been approved; that the charge against Owen
. Owing to the wide discretion of the probate court in such matters, we pass-by complaints made of the order of the probate court of October 12 accepting the resignation of Fred Oberst as administrator of the estate, and shall direct our attention to the ruling of the court-on October 19, on the motion of Owen Oberst to direct a distribution of the estate. While the probate court was not specifically requested to make a finding as to who is the heir, or who are the heirs, of W. F. Oberst, deceased, it appears to be conceded in this record that Owen Oberst is the only child and heir of W. F. Oberst and entitled to the estate unless precluded therefrom for some of the reasons which will be discussed. The records of the probate court do not show the reasons of the probate court for refusing to find that Owen Oberst was the heir of W. F. Oberst and directing the administrator, Fred Oberst, to turn over the property to him, but in the briefs we are told there were four reasons:
First, the claim of Dorinda A. McClain, which had been heard and denied by the probate court; but she had given notice of appeal, the amount of her appeal bond had been fixed, and the time within which she could give bond had not expired. With respect to that Owen Oberst offered to leave sufficient funds in the hands of the administrator to pay any judgment which might be obtained
Second, we are told that the administrator, Fred Oberst, had listed the property of the estate in his hands for taxation in the spring of 1931, the taxes were not due and payable until November 1, and this is suggested as a reason for not closing the estate. It was a trivial reason at the best. Since most of the property was in government bonds the taxes could not have been large, the tax rolls had been made up and turned over to the county treasurer, it would have taken but a minute to step into the treasurer’s office and find' the amount of the taxes, and if they could not have been paid on that date there are several ways the matter could have been easily handled so as not to delay the closing of the estate. That item has since been paid by Owen Oberst, hence it is no longer a reason for declining to close the estate.
Third, we are told that the inheritance tax had not been computed or paid, and for that reason a final discharge of the administrator could not be made. Technically this was correct (R. S. 79-1522). It has been previously held by this court that it is improper to discharge an administrator until this tax is paid (In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073), but a discharge of the administrator before the tax was paid would not relieve the estate of the tax. (See, also, Skinner v. Mitchell, 108 Kan. 861, 870, 197 Pac. 569.) Whatever impediment that caused to the closing of the estate has been eliminated, for the amount of the inheritance tax has now been computed and paid by Owen Oberst.
Fourth, the administrator had brought a suit on the insurance policy on the home of W. F. Oberst, which burned, and that action was still pending in the district court. Perhaps this suit was improvidently brought, but whatever impediment it offered at that time to the closing of the estate no longer exists, for the action has been dismissed. So all the reasons urged for the refusal of the court to close up the estate were trivial and of no substantial consequence, and they no longer exist.
From some things appearing in the record and said in the argument, perhaps the real motive actuating the defendant Fred Oberst, which prompted him to resign as administrator and which caused him and his bondsmen to oppose the motion for the distribution of
So far as the defendant, Fred Oberst, is concerned he brought about his own appointment as administrator, but whether he did so or not he accepted the appointment, has performed the duties of an administrator of the estate (and apparently has performed them well), and he should make distribution of the estate the same as though he had been appointed administrator of any other estate. The fact that he may entertain the hope, if he does entertain it, that possibly under changed future circumstances, which may or may not arise, he might be the heir of the estate, does not justify him in conniving to defeat the recognized legal rights of the present heir to the estate. To the extent he has, or is, so conniving, his conduct is reprehensible in the extreme.
The sureties on the bond of Fred Oberst, the administrator, while not parties-to this action, out of an abundance of caution have had
“The final settlement of the accounts of . . . an administrator and his discharge ordinarily terminate the liability on the bond.”
To the same effect is 11 R. C. L. 182-184. The administrator’s bondsmen would be protected in this case as in any other.
From what has been said it is clear that the estate of W. F. Oberst has been fully administered in the probate court of Butler county, except for a finding by the probate court of who is the heir, or who are the heirs, of the decedent and an order by the court for the assets of the estate to be delivered to such heir or heirs. The trivial objections which existed in October, 1931, to the-making of the necessary findings and orders for the closing of this estate no longer exist. This being an original case in this court, we dispose of it as the facts now appear rather than as they appeared last October. No new administrator is needed, and the appointment of one by the probate court would be an abuse of its discretion. While the resignation of Fred Oberst, as administrator, was accepted by the court, he still has the assets of the estate in his possession and is amenable to appropriate orders of the court for their disbursement. He is a party to this action, and the orders of this court in this cause are binding on him. The time has come when this estate should be settled and closed up.
The writ prayed for will issue. It is therefore adjudged and ordered by this court that the defendant Y. P. Mooney, probate judge of Butler county, make a finding of who is the heir, or who are the
The court will retain jurisdiction of this proceeding to see that its orders are carried' out.