Collamore v. Wilder

19 Kan. 67

• Court: Supreme Court of Kansas
• Decided: July 15, 1877
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

pleadings, ana fads. This cause comes to this court upon an exception taken by the plaintiff in error to the order of the court below sustaining a general demurrer to the petition filed in that court. It was alleged in said petition, that Geo. W. Collamore, in his lifetime and at his death, was indebted to John 33. Collamore, plaintiff, on claims of a fiduciary character, in a sum of more than $100,000, but for which no demand was made till July 2'5th 1866; that said Geo. W. Collamore died in Kansas on 21st August 1863, leaving estates in both Kansas and Massachusetts, and leaving all the defendants his heirs-at-law, save John H. Wilder; that in pursuance to his will, John A. Andrew of Massachusetts was duly appointed executor of the estate of said decedent in Massachusetts, by the probate court of Suffolk county, on 29th January 1864; that on 3d May 1864, one G. Grovenor was duly appointed administrator, with the will annexed, by the probate court of Douglas county, in this state, but never gave the notice of his appointment required by section 74, ch. 9, p. 523, laws of 1862; that by his said will, the said George W. Collamore among other things appointed and required that all his “just debts should be paid by his said executor out of his said estate;” that on July 25th 1866, the plaintiff in error exhibited his demand against the estate of Geo. W. Collamore, deceased, to the said G. Grovenor as administrator; that prior to the last-named date, the said John H. Collamore had commenced his action in the supreme judicial court of Suffolk county, Massachusetts, against said John A. Andrew, as executor as aforesaid, to recover and secure the moneys in the account and demand exhibited to said Grovenor; that when said demand was so exhibited to said administrator in Kansas, it was then agreed between the parties that no further action should be had in Kansas beyond legally exhibiting to said administrator said claim, until the determination of said suit in Massachusetts, and that the determination there should settle the matter here; that the suit in Massachusetts was not finally determined until the 28th of February 1874, at which time the supreme judicial court of that state rendered judgment in favor of the plaintiff in error in said action for $73,577.37 damages, and $1,898.31 costs; that on said judgment so rendered in his favor, there was paid about $60,000, leaving due thereon about $20,000; that the estate in Massachusetts was exhausted; that said Grovenor, as said administrator, made his final settlement of the estate of said Geo.W. Collamore, deceased, in Kansas, on March 12th 1867, which final settlement was approved by the probate court of Douglas county, and such administrator was finally discharged 15th May 1868; that there being a large amount of real estate in Kansas belonging to the said estate of Geo. W. Collamore, deceased, on May 22d 1875 the probate court of Douglas county appointed the defendant in error, John H. Wilder, administrator de bonis non, with the will annexed, of said estate of said decedent; that said Wilder duly qualified and accepted such trust, and that between the dates of May 15th 1868, and May 22d 1875, there was no administrator in Kansas; that at the November term 1867 of the district court, in an action then pending between the heirs-at-law of said Geo. W. Collamore, deceased, said John H. Wilder was appointed trustee of the said estate, and accepted such trust, and still remained as such trustee; that all said heirs-at-law of Geo. W. Collamore, deceased, left the state of Kansas in August 1863, and have ever since resided out of the state, and been absent therefrom; that there was no personal property of said estate in Kansas, unadministered upon, but certain real estate remained, a list of which was attached (with a copy of the account sued on) to the petition. The prayer of the petition asked for a full accounting between the parties, for a judgment for the amount that should be found due the plaintiff in error, and for an order and decree to have the real estate described in the petition sold to pay said judgment. The suit was begun in the court below on May 29th 1875.

The question is presented by the record, whether the facts set forth in the petition constituted a cause of action against the defendants in error. In other words, did the court below commit error in refusing to assume jurisdiction of the cause ?

xdministrator’a notice. We are of the opinion that the failure of Grovenor, as ‘ administrator, to give the notice, of his appointment, as. refibred by sec. 74, p. 523, laws of 1862, and the subsequent agreement of such administrator as to the suit pending at the time in Massachusetts, do not materially affect the determination of the inquiry presented. The evident purpose of said section 74, is to give all creditors of estates in administration notice of the appointment of an executor or administrator, so that claims can be exhibited within the statutory limitation of three years; but where an administrator has been legally appointed, and a creditor of the estate has actual notice of such appointment, and treats with the person thus appointed as the legal administrator, and exhibits to him, as such administrator, his demand against the estate, such creditor is in no manner misled or prejudiced by the want of said notice. To him such notice is useless, and he cannot complain of its non-publication.

Powers of aamimstrator. The promise or agreement of the administrator, whereon the plaintiff bases his failure to have his account allowed or established before the discharge of the administrat0p from his trust, was not binding on the estate, or the heirs-at-law of the decedent. An administrator takes only such powers as are conferred by law, and those who deal with him have notice of his duties and his powers, and of all limitations thereon. He is merely an agent or trustee, acting immediately under the direction of the law regulating his conduct and defining his authority. His duty is to settle his estate according to .the terms of the law, and he cannot postpone indefinitely the settlement of an estate, or bind an estate, or the heirs of an estate, by agreeing to the decision of a court to which he, as such administrator, is neither a party nor privy. In contemplation of law, there is no privity between administrators in different states of the same estate. Jones v. Jones, 15 Texas, 463; Stacy v. Tharasher, 6 How. 44; Ela v. Edwards, 13 Allen, 48; Slanter v. Chenowith, 7 Ind. 211. Whether the administrator could be held upon the said agreement as his personal undertaking, or whether such an agreement would be good cause, if the proper proceedings had been commenced, to have delayed the final accounting and discharge of such administration until the determination of the suit in Massachusetts, we need not now discuss, as these matters are not presented for consideration.

claims against estate; laches of creditor.

Administration; jurisdiction district courts, rinai settlement in probate court. With the non-publication of the notice of the appointment of Grovenor as such administrator, and the agreement of said administrator as to the suit in Massachusetts eliminated from the record, the sole question remaining is, whether it. , , _ . ° . the district court erred m refusing to entertain the said suit against the heirs of the decedent, to whom lands had descended, to have such lands sold to satisfy the claim of a creditor, who, having exhibited his demand during the administration to the administrator, and without any apparent reason had neglected within the prescribed time to pursue his remedy against the estate by having his claim allowed or established, classified and paid, when there were ample assets to pay it off, and after there had been a final accounting and settlement of said estate, and a final discharge of said administrator, and such final discharge of the administrator has not taken place for more than four years after the date of the letters of administration, and no charge is made of error, fraud, or concealment as to the final settlement and discharge of the administrator. The appointment of Wilder as administrator de bonis non, without setting aside the prior settlement, and the facts concerning the selection of the same person as a trustee, in a suit between the heirs of Geo. W. Collamore, deceased, do not add anything to the rights of the plaintiff in the premises, or afford additional reasons for the institution of the suit. The matter submitted is one of great practical importance. If the argument of the learned counsel for the plaintiff is to be sustained, then the whole settlement of estates can be transferred from the tribunals specially established by the statute for the administration of estates to the district courts, and that too after the expiration of the three years given for administration, and when a final accounting and settlement have been had in the probate court, from which there has been no appeal, and which remain unassailed on account of any error, or fraud, and having the like validity of any other judgment. Such a conclusion would keep for years unsettled the titles to lands descended to heirs, and estates could be settled, opened, and resettled, without any definite result. Such ought not to be the law, and we do not think such a purpose is to be gathered from the statute.

While it is true that the statute prescribing the ‘ , . ,, jurisdiction ot the district courts is certainly broad enough to give to such courts full chancery and common-law jurisdiction, (and the subject of this action has always been held a subject of chancery jurisdiction,) and while an estate by descent renders the heir liable for the debts of his ancestor to the value of the property descended, still, it has also been equally well settled, that where the property sought to be reached constitutes, as here, assets of a deceased debtor which have already been subjected to administration and distribution under a special tribunal having jurisdiction of the matter, the rule requiring the existence of special circumstances bringing the case under some recognized head of equity should not only be insisted upon with rigor, but some satisfactory excuse should be given for the failure of the ci’editor to collect his claim in the mode prescribed by law, before final settlement and discharge of the administrator. The question becomes one, not of jurisdiction, but of the exercise of such authority. Public Works v. Columbia College, 17 Wall. 521; Williams v. Gibbes, 17 How. 239, 255; Titterington v. Hooker, 58 Mo. 593; Littleton v. Addington, 59 Mo. 275. No valid excuse is here presented for the delay, or rather, non-action, of the creditor after the exhibition of his demand to the administrator. Where claims are exhibited and the estate is solvent, save in exceptional cases, the statute seems to intend that the administration shall continue for three years; and before any final settlement can be had, a notice thereof must be published by the administrator or executor, as the case may be, for' four , . . . _, weeks in some newspaper, so that the creditors and all others interested shall be informed as to the time the final settlement is to be made, and such final settlement is a judicial determination, binding upon all the property of the estate, and upon any interest in such property that any person may have as heir, devisee, or legatee. Shoemaker v. Brown, 10 Kas. 383. Such final settlement, when not completed till more than three years after the letters are granted, is a determination of the settlement of the estate of the decedent, and thereafter, ordinarily, the title of property which has remained undisposed of is not held in abeyance to await the presentation and litigation of other proceedings. In this case, although the final settlement purports to have been had on March 12th 1867, a few weeks less than three years .from the date the letters were granted, the administration was kept open till the discharge of the administrator in May 1868, more than four years from the issuance of the letters of administration. The plaintiff in error had ample time and opportunity to have his claim allowed, and the lands subjected to the payment of the same during the lifetime of such administration. This he neglected to do. That he leaned upon a broken reed, in the way of an agreement which the administrator had not the power to make, is a mistake of law on his part for which the courts furnish no relief.

We conclude that a creditor of an estate in the hands of an administrator or executor, must not only exhibit his demand against such estate within the three years prescribed by statute, to obtain any recovery thereon, but he must do something more, and that is, before the final accounting and discharge of the administrator after three years have expired from the date of the granting of letters, he must have his demand allowed or established, and paid from the assets of the estate; and that he cannot merely exhibit his claim to the administrator, and then be passive, and permit the three years of administration to expire, and after a final accounting has been had, the administration closed, and the administrator discharged, seek in the district court to subject the lands descended to the heirs to the payment of his claims. Under such circumstances, the lands ought not thus to be pursued, and the heirs ought not in this way to be harassed; and above all, the titles to lands derived from persons who are dead should not thus be the subject of contest, after the estate has been judicially settled, and the records of the proper tribunal show no allowed or established claims unpaid, and when all parties have the right to presume that all debts have been paid, and that the lands inherited are relieved from further claims of creditors against the estate of the deceased. Statutes designed to produce a speedy settlement of estates, and the relapse of titles derived under those who are dead, should be stringeñtly enforced; and courts of equity will not relieve parties therefrom, except upon strong and peculiar circumstances.

win- terms construed. Counsel for the plaintiff in error finally suggests, that in any event the suit of the said plaintiff is maintainable because °f the provision in the will of the deceased réquiring that all his “just debts” should be paid. We cannot concede the proposition. The weight of the authority is against the position, and rightly so. Such formal and general language in a will is meaningless, and has no authoritive force. The law compels the payment of all just debts of any decedent, where there are sufficient assets, and the legal steps are pursued to obtain a recovery thereon. Hence, these words give no power to an executor, nor deprive him of any authority. They will not strip an estate of a just defense, nor can a party who neglects a proper presentation and proof of his demand invoke these words successfully to his aid, after he has suffered the estate'to be settled and the administration closed. Peck v. Botsford, 7 Conn. 176; Martin v. Gage, 5 Selden, 398; Bloodgood v. Bruen, 4 Selden, 362.

The district court did not err in refusing to exercise its jurisdiction in the case, and therefore the judgment will be affirmed.

All the Justices concurring.