Swayze v. Wade

25 Kan. 551 | Kan. | 1881

The opinion of the court was delivered by

HortoN, C. J.:

Two questions are presented for our consideration by the record in this case. The first is, was the order withdrawing the Blade office material, and the proceeds thereof, from the assets of the estate of the deceased, and allowing the administratrix credit therefor, an appealable order? Second, if appealable, is the property known as the Blade office material, mentioned in the inventory of the goods and chattels of the estate, exempt to the widow for the use'of herself and children of the deceased? We need not discuss or decide whether' an appeal lies from the annual settlement of an administrator, or administratrix, because the appeal was not taken from the order of the probate court confirming the annual settlement of the administratrix. The appeal was taken from the order making an allowance to the widow of the sum of $2,340.57, absolutely for the use of herself and children. By the terms of the order, this sum was withdrawn from the assets of the estate as .property exempt by law from the payment of any of the debts of the deceased, and the ad-ministratrix was allowed credit for such sum. The notice of the appeal was given in open court, and was taken upon the order exempting and withdrawing the proceeds of the Blade office material from the assets of the estate, and not from the order approving the annual settlement.

See. 188, ch. 37, Comp. Laws of 1879, provides: “Appeals shall be allowed from the decision of the probate court, to the district court, in the following cases: . . . Fourth, On all orders directing the payment of legacies, making distribution, or making allowances to the widow. . . . Twelfth, . . . ■ In all other cases where there shall be a final de-cisión of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction.” Therefore, as the order appealed from was in the .nature of an allowance to the widow and a final decision of the probate court, the appeal was properly taken and the district court rightly denied the motion to dismiss the action. As no notice of the hearing of the application for exemption was given to the creditors, or other parties, of course an order ex parte would have bound no one interested adversely thereto, but as defendant in error appeared voluntarily at the hearing thereon, and gave notice in open court of his appeal, and thereafter perfected the appeal, the question of the jurisdiction of the probate court for want of notice is not before us.

Upon the.second inquiry, conceding that the articles, goods and chattels known as the “Blade office material” were exempt to the deceased during his lifetime, it is clear to us that prior to the adoption of §1, ch. 103, Laws 1879, the widow, in addition to her portion of her deceased husband’s estate, was allowed to keep for the use of herself and children of the deceased only the articles of personal property mentioned in §49, ch. 37, Gen. Stat. 1868. This section does not include the articles and property exempted under the order of the probate court. However harsh or unjust the provisions of that article were, we have no right to enlarge its terms or substitute new provisions therefor. We make no laws, and are bound by the enactments of the legislature, when within the limits of the constitution. Counsel however claim that if the exemption was not within the terms of the act of 1868, the property is exempt under § 1, ch. 103, Laws of 1879. This section reads:

“That § 49 of ch. 37 of the Gen. Stat. of 1868 be amended to read as follows: Sec. 49. In addition to her portion of her deceased husband’s estate, the widow shall be allowed to keep absolutely for the use of herself and children of the deceased, all personal property of the deceased, which was exempt to him from sale and execution at the time of his death.”

This act went into force March 11, 1879, nearly two years after the decease of the intestate and the appointment of the administratrix, and after the first annual report of such ad-ministratrix had been filed, and after the appeal in this case had been perfected. That act, therefore, cannot be said to confer or grant any exemption to the widow or children of the deceased, because the statute has a prospective operation only, as its terms do not show clearly any legislative intention that it should operate retrospectively. Even if the legislature had intended that the act should operate retrospectively, it is doubtful whether such an exercise of power would be legitimate. Before the adoption of the statute, the property was in the hands of the administratrix, subject to the payment of the costs and expenses of administration and the payment of all debts. To all intents and purposes, the creditors had a lien on such property and its proceeds, and such lien could not be legally divested at the will of the legislature, any more than the lien of an attaching or execution creditor could be divested by the legislative will against the consent of the creditor.

The order and judgment of the district court will be affirmed. •

All the Justices concurring.