91 P.2d 22 | Kan. | 1939
The opinion of the court was delivered by
This was an action by an administrator de bonis non to recover possession of a certificate of corporate stock and dividends collected thereon. A demurrer based upon the grounds the petition stated insufficient facts to constitute a cause of action, and that the action was barred, was sustained. From that ruling plaintiff appeals.
The petition filed on January 12, 1938, was in substance as follows:
Plaintiff is the duly appointed, qualified and acting administrator de bonis non of the estate of Laura A. Tiernan, deceased, and his post-office address is Fort Scott, Kan.; the defendant, Robert S. Tiernan, is now and has been at all times herein mentioned since 1928, a resident of Kansas City, Mo.; Laura A. Tiernan died at Fort Scott, March 31, 1906, and administration was first had on her estate in the month of June, 1927; she left as her only heirs at law five children, Charles, William, Raymond, Robert S. Tiernan, the defendant, and Stella Tiernan Stour; at her death Laura A. Tiernan was the owner and holder of 58,520 shares of the capital stock of the Southwestern Coal & Iron Company, a Utah corporation, which shares were represented by a considerable number of stock certificates assigned by her in blank; some time after the death of Laura A. Tiernan, and before administration was had upon her estate, a person whose name is unknown to plaintiff was attempting to purchase a majority of the capital stock of the corporation, and the defendant Robert S. Tiernan represented himself and the other heirs in the transaction herein stated; for the purpose of
Did the court err in sustaining the demurrer? The first question is, whether under the facts admitted by the demurrer this action can be maintained by an administrator. Is the administrator the real party in interest? Laura A. Tiernan died intestate in 1906. No administration of her estate was attempted until- the year 1927. The title to the personalty, the shares of stock, passed upon her death to her heirs, including the defendant, subject only to the payment of
This action was'commenced by the administrator in 1938, a period of over thirty-one years after the death of Laura A. Tiernan. Not only could he at that time in no manner represent the creditors, but he likewise had no function to perform for the heirs. They had, prior to his appointment, made their own disposition of their rights in and to the stock. Where rights of creditors are not involved such voluntary settlements are favored, in this state, and when fairly entered into will not be disturbed. (Brown v. Baxter; Riffe v.
Plaintiff reminds us the petition alleged the certificate of stock was owned by the estate and that the demurrer admits the averments of the petition. The demurrer, of course, only admits facts properly pleaded. It does not admit naked conclusions (Kretchmar v. City of Atchison, 133 Kan. 198, 204, 299 Pac. 621), and, of course, never admits erroneous conclusions. In view of other facts pleaded, it clearly appears the stock is no longer an asset of the estate, but the sole property of the heirs.
The trial court made findings of fact in connection with the ruling on the demurrer to the petition, some of which are criticized as being somewhat inaccurate. Findings of fact, of course, were not required on a ruling on a demurrer to the petition. We have before us the petition, and the court reached the proper conclusion in sustaining the demurrer. That is all that is necessary on appeal.
We have reviewed the authorities cited by plaintiff on the general proposition that an administrator is the proper person to recover the assets of a decedent’s estate. That such is the law cannot be doubted. He is not only the proper person to do so, but that is his duty. (Farmers State Bank v. Mitchell, 143 Kan. 286, 292, 55 P. 2d 423.) Here, however, he is endeavoring to recover property which is not now an asset of the estate, and to disturb a voluntary settlement and disposition of property fairly entered into by the heirs, which they had full authority to make.
The order sustaining the demurrer to the petition is affirmed.