268 P. 814 | Kan. | 1928
The opinion of the court was delivered by
The parties to this action were interested in the estates of their deceased parents. Matilda A. Snyder, their mother, died on May 2, 1922, and H. Snyder, their father, died on June 2, 1923. The probate court appointed J. H. Tharp administrator of both estates, who administered them under the direction of the probate court, making reports from time to time, which were approved by the probate court, and after a final report was discharged. For convenience Ray W. Snyder will be referred to as defendant.
On April 2,1925, Ray W. Snyder, one of the five children, brought an action against the others to partition the estate of H. Snyder, deceased. On May 2, 1925, all the heirs entered into a contract for settlement and partition of the property of the estate, in which among other things it was stipulated that Ray W. Snyder should dismiss his action in partition upon compliance with the provisions of the contract. The present action was brought by the heirs other than Ray W. Snyder against him to require the specific performance of the contract, including the conveying of real estate, in accordance with its terms and the payment of certain obligations named in the contract, in order to equalize the shares of the heirs; and they also asked to have the title quieted to the real estate allotted to each of them.
In the contract there was a recital of an estimate that the estate would yield to each of the five heirs at least $21,500; that certain real estate and personal property belonging to the estate should be set aside to Ray W. Snyder as his share, and if the property so set apart upon appraisal exceeded the sum of $21,500 he should secure the payment of the excess to the other heirs. It was stipulated that the residue of the estate after payment of all indebtedness, including costs and expenses of administration, should be divided among the heirs share and share alike, and that any indebtedness of any of the heirs should be computed as a part of his share. A part of the property of the estate was a mill and lumber plant, and it was agreed that it should be leased to Ray W. Snyder for a year on conditions and at a rental which were stated, and also that he should have the privilege and option to renew the lease for a longer time upon specified conditions. It was further agreed that the administration of the estate should be closed, if possible, within two-
Another conclusion was that the administrator had no right to the possession of the real estate or to the profits derived from it, but as to that it was concluded that he was accountable to the heirs, and this item was not involved in this action. It was concluded that Ray W. Snyder having knowledge of the repairs and improvements up to a certain date and having made no objections thereto was liable to the extent of $2,861.32, but that he was not estopped as to his claim that $2,810 was wrongfully expended, since it'was not shown that it was done with his knowledge or consent, and one-fifth of the amount was credited to him. There was a further finding that he was indebted to the plaintiffs in the sum of $3,726.65 on a promissory note, and the sum of $2,711.50 on excess payment on the distribution of the estate, making a total of $6,438.22; that from this should be deducted the sum of $471.18, leaving a balance of $5,967.04, for which amount judgment should be given to plaintiffs against Ray W. Snyder, with interest thereon from May 7, 192,6. An order of distribution of this amount among the individual plaintiffs was made.
There is a contention that some claims adjudged against the defendant were not warranted, and some evidence is quoted to sustain the claim. The record does not purport to contain all the evidence pertaining to these claims, and our view of the facts is limited to what is set out in the findings of the court.
One contention is that the court was not justified in adjudging that interest should be paid on the indebtedness of Ray W. Snyder to the plaintiffs from May 7, 1926. Under provisions of the family compromise agreement payments were due when final settlement was made of the Snyder estate. That was the date from which interest was reckoned and allowed. It was defendant’s duty to make payment at that time, but as he failed to make or tender payment no reason is seen why interest should not be adjudged. It is said there was a dispute as to the amount of defendant’s indebtedness and that interest could not be allowed until the dispute was settled. A debtor cannot escape liability for interest upon indebtedness which is due by disputing the amount of it. The claim was not for unliquidated damages but for money due under a contract about the execution of which there is no dispute. The right to
It is next contended that error was committed in charging defendant with a proportion of the taxes and improvements made. In the assignment of errors complaint is made of the allowance for repairs and improvements on the real estate, but nothing is said as to the taxes. Assuming that the general specification of error that the defendant was not indebted to the plaintiffs in the amount adjudged, we will examine the finding as to taxes. The taxes for three years on the real estate were paid by the administrator. It was conceded and held by the court that these payments were beyond the authority of the administrator. The administrator, however, was in possession of the property, including the mill and lumber plant, the latter being held by him under a contract with the defendant. The taxes accrued yearly and were paid by the administrator out of .the proceeds of the estate. The property was owned in equal shares by the five heirs jointly, and each was liable for one-fifth of the taxes. While it was an excess of authority on the part of the administrator, all knew that the taxes must be paid, and instead of each heir paying one-fifth of the taxes it was paid by the custodian of the funds of the estate owned jointly by the heirs. It was an equitable adjustment that was made by the court, and the defendant was not charged for more than his proportion of the taxes for which the property was subject.
As to the repairs and improvements made by the administrator upon the real estate without authority, it appears to have been done with the knowledge of the defendant as well as of the other heirs. With knowledge that these expenditures were being made for the benefit of the estate, no objection was made by the defendant. Because it was not sufficiently shown that he consented to or had knowledge of a part of the repairs and improvements made, the court eliminated the expenses of these and charged them to the plaintiffs. By reason of his knowledge and acquiescence in the part charged to him, he was not in a position to deny liability, and we think the court rightly held him liable for his share of the benefits derived from the expenditures. No error was committed in this respect.
There is also a complaint of that part of the decree which pro
“. . . It is no more than a process for the purpose of dividing and distributing among owners real estate where it is found impossible to have a division in kind.” (Towle v. Towle, 81 Kan. 675, 689, 107 Pac. 228.)
In such an action the statute provides that:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties and to secure their respective interests.” CR.S. 60-2114.)
Under thé' statute the court may make partition of the property upon the broad principles of equity, and may require one who has-been given an allotment in' excess of his share to make payment o‘f the excess, and if immediate payment is not made to charge it as a lien against the excessive allotment. (Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074.) Within its equity powers the court makes a complete and final partition, and we think a provision for the enforcement of the lien is not within the redemption statute. No error was committed in decreeing that the partition should be made, including the enforcement of the lien without providing for a redemption period.
We discover no error in the proceedings, and therefore the judgment is affirmed. • -