37 P.2d 1005 | Kan. | 1934
The opinion of the court was delivered by
This is an appeal from an order of the district court overruling a motion to dismiss a claim against the estate of a decedent, the probate court having sustained the motion and claimant having appealed to the district court.
The record discloses facts as follows: A. W. Shulthis died intestate December 29, 1922. On January 6, 1923, appellants were appointed administrators of his estate and duly qualified and published notice of their appointment. On June 24, 1933, the appellee, Henry Miller, filed his claim against the estate by duly exhibiting his demand in writing. This recited in substance that for many years claimant owned a certain described forty-acre tract of valuable land, and other land adjoining it, situated in the Verdigris river bottom; that A. W. Shulthis, in his lifetime, and his estate since his death, owned land east of claimant’s land and between that and the river; that prior to 1917 there was a natural watercourse leading from claimant’s land onto and across the Shulthis land to the river, which was a sufficient drain for claimant’s land; that there is a public road along the east side of plaintiff’s land turning west at the southeast corner thereof; that sometime in 1917 Shulthis, desiring to improve his land by closing the watercourse across it, proposed to claimant that he would construct a ditch west of the road along the east side of claimant’s land to the southeast corner thereof, thence southward across intervening lands to the river; that there
When this claim was presented to the probate court the administrators moved to dismiss it for the reasons, (1) that the court had no jurisdiction, and (2) the time for filing claims against the estate had expired. The probate court sustained the motion. The claimant appealed to the district court, where the motion was overruled.
We need only to pass upon the question as to whether the claim filed June 29, 1933, more than ten years after the administrators were appointed, was presented in time. The statute in force at the time of the death of A. W. Shulthis (R. S. 22-702), with certain exceptions not here important, required all claims or demands against an estate to be exhibited within two years (the time is now one year, R. S. 1933 Supp. 22-702), unless the claim was one which accrued later (R. S. 22-729). Now, what is Miller’s claim he seeks to have allowed here? It is that in 1917 Shulthis orally agreed with him to construct and maintain drainage for Miller’s land, in consideration of which Miller agreed that Shulthis might close the natural watercourse; that Shulthis never carried out his agreement, although he lived five years after the agreement was made; that the agreement never has been carried out, but has been breached; that as a result of this breach his land has depreciated $75 an acre in value, and that it would cost claimant $4,500 to do what Shulthis agreed, but failed, to do. We see no reason why a claim of that kind could not have been filed directly after the administrators were appointed. The allegation in the claim that Shulthis agreed that in case of his death the work would be completed and maintained by his estate or personal representatives also was breached by the death, intestate, of Shulthis. The only way Shulthis could bind his personal representatives to do this work would be by a will directing his executors to do it. He left no will. Hence, the breach of the agreement was complete and Miller could have filed his claim at once.
Claims against an estate not presented to the probate court within
The action alleged to have been taken by the administrators, and the contract of September 11, 1931, alleged to have been executed by them, did not toll the time of filing claim, or otherwise affect the matter. When A. W. Shulthis died intestate his real property passed to his heirs (R. S. 22-108; 22-118). The administrators had nothing to do with it, unless it was necessary to pay debts of the estate as provided by R. S. 22-801. (See Lindholm v. Nelson, 125 Kan. 223, 229, 264 Pac. 50, and cases there cited.) The administrators as such had no authority to spend any money on the real property nor to make any contracts concerning it. The claim in question, however, is not founded on any agreement between claimant and the administrators. If it were it would not be well founded, for it is well settled an estate cannot be held liable for the promise of an administrator, which promise he had no legal authority to make. (Brown v. Evans, 15 Kan. 88.)
The result is, the judgment of the trial court must be reversed, with directions to sustain the motion to dismiss. It is so ordered.