95 Kan. 519 | Kan. | 1915
The opinion of the court was delivered by
The action was one to determine the title to a fund of money. A motion to dismiss the action on the ground of want of jurisdiction and a demurrer to the petition were overruled. A demurrer to the affirmative defenses pleaded in the answer was sustained, and the defendants appeal.
David Yoekey was the owner of a quarter section of land which was the homestead of himself and his wife, Eliza Yoekey. David Yoekey died in January, 1905, leaving as his heirs his wife and several adult sons and daughters. One of the sons was Levi S. Yoekey, who was a deaf mute. On March 11, 1905, Levi was adjudged to be of feeble mind, and his brother, Christopher C. Yoekey, was appointed his guardian. In November, 1907, Levi died, and'in December Christopher
Briefly summarized, the petition shows that on account of the great age and infirmity of David Yockey, his children, before his death and on August 3, 1904, entered into an agreement relating to a disposition of the homestead to be carried out in the future in accordance with desires which David Yockey had expressed. Under this agreement sixty acres of the homestead Were secured to Levi and title was to be conveyed to him in trust for his children. Provision was made for the support of Eliza Yockey, who was very old, during her lifetime, and for a distribution of the portion of the homestead not set apart for Levi and his children, at her death. After David Yockey’s death, and in March, 1905, his entire homestead was sold for the sum of $4000. The widow and heirs all joined in the deed. Out of the proceeds of this sale and for the purpose of carrying out the agreement referred to the proportionate share of $1550.68 was placed to the credit of Levi S. Yockey and was thereafter considered, treated, and accounted for as belonging to him and to his estate, until in April, 1908. The allegations of the petition are such as to show an equitable estoppel upon all the heirs of David Yockey, including the widow, to deny that this fund became the property of Levi, passed to his guardian, and then passed to the administrator of his estate. After the death of Levi his guardian rendered a final account showing the sum of $1447.47 on hand on December 27, 1907, with which sum the administrator charged himself. On April 6, 1908, the administrator presented to the probate court an ex parte application alleging that the fund in question was derived from the sale of David Yockey’s homestead, that the proceeds of such sale were not subject
The prayer of the petition, which was filed in January, 1913, was that the ownership of the fund in question be determined and that the fund be adjudged to be the property of the estate of Levi Yockey.
The motion to dismiss asserted that the district court had no jurisdiction of the action, because the probate court still had jurisdiction over the settlement of the estate of Levi Yockey. While the probate court had jurisdiction to settle the estate and to supervise the conduct and accounts of the administrator, it had no jurisdiction to determine the ownership of this fund, its attempt to do so in April, 1908, was void, and the district court was the proper tribunal to make the adjudication. (Humbarger v. Humbarger, 72 Kan. 412, 83 Pac. 1095; Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642; Dobson v. Holmes, 83 Kan. 476, 112 Pac. 131; In re Moran, 83 Kan. 615, 112 Pac. 94; Leyerly v. Leyerly, 87 Kan. 307, 124 Pac. 405; Gille v. Emmons, 91 Kan. 462, 138 Pac. 608.)
The motion to dismiss, the demurrer to the petition, and certain defenses of the answer were based on the motion that the action was one for the tort of the administrator, or for the fraud of the administrator, in procuring the special settlement of April, 1908, and in paying over the money to Eliza Yockey, and that the remedy lay in proceedings in the probate court to compel the administrator to restore the fund. If no title
The demurrer and portions of the answer raise the question of the applicability of the two-year statute of limitations. It is said that the action was one for relief on the ground of fraud, the probate record of April, 1908, disclosed the fraud to the plaintiffs as soon as it was made, and consequently that the action was barred in 1910. No fraud on the part of anybody was pleaded or even suggested in the petition. The probate proceedings were not characterized as being taken for any other than the honest purpose to correct the supposed error made in including the fund in the inventory of Levi’s estate. The probate proceedings are simply attacked as being beyond the jurisdiction of the probate court so far as they adjudicated title to the fund. This attempted adjudication and the action of the administrator pursuant to it constituted a denial of the plaintiffs’ rights as heirs of Levi’s estate and gave rise to a
“An action for relief not hereinbefore provided for can only be brought within five years after the cause of action shall have accrued.”
The answer pleaded want of consideration for the agreement securing the sixty acres of land to Levi. When the agreement was carried out under circumstances making it inequitable for any one to question its binding force, the matter of an original consideration for it became immaterial.
Nothing else contained in the answer tends in any degree to defeat the estoppel pleaded in the petition, and if, as the defendant’s claim, they have answered fully, the case should be tried on the petition of the plaintiffs and the denials of the defendants.
The judgment of the district court is affirmed.