Achenbach v. The Pomeroy Coal Company. == Same

• Decision Date: 01 October 1895
• Docket Number: 33,32
• Parties: LOUISA M. ACHENBACH, as Administratrix of the Estate of T. M. Achenbach, deceased, v. THE POMEROY COAL COMPANY. -- SAME v. THE WESTERN NEWSPAPER UNION
• Court: Kansas Court of Appeals

42 P. 734

2 Kan.App. 357

LOUISA M. ACHENBACH, as Administratrix of the Estate of T. M. Achenbach, deceased, v. THE POMEROY COAL COMPANY. -- SAME v. THE WESTERN NEWSPAPER UNION

Nos. 32, 33

Court of Appeals of Kansas, Northern Department, Central Division

October 1, 1895

Error from district court, Washington county; F. W. Sturges, Judge.

Opinion Filed November 11, 1895.

MEMORANDUM. -- Error from Washington district court; F. W STURGES, judge. Actions brought by The Pomeroy Coal Company against The Lincoln Stone and Marble Company, and by The Western Newspaper Union against same. In each action judgment was rendered for the plaintiff. In each case a motion was made for execution against Louisa M. Achenbach, as administratrix of the estate of T. M. Achenbach, deceased and granted, from which orders she brings the cases here. Reversed. The opinion herein, filed November 11, 1895, states the material facts.

Order reversed and case remanded.

Powell & Powell, and J. W. Rector, for plaintiff in error.

Joseph G. Lowe, for defendant in error The Pomeroy Coal Company.

Chas Smith, for defendant in error The Western Newspaper Union.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

These two cases involve substantially the same facts, and the decision in each case turns upon the answer which shall be given to the question: Can the individual liability of a stockholder in an insolvent corporation be enforced through the summary proceeding by execution against the estate of a deceased stockholder which is in course of settlement in the probate court? Our attention has not been called to any case in point, and we have found none, but, upon principle, we think the question must be answered in the negative. In these cases, judgments were obtained against the corporation, executions issued, and returned "No property." Thereafter, on motion of the plaintiffs, and after due notice to the administratrix of the estate of T. M. Achenbach, deceased, who was a stockholder in the corporation at the time of his death, the court made an order awarding execution against the estate of the deceased for the collection of the judgments against the corporation. This decision is assigned as error by the administratrix.

The status of the property of a deceased person is fixed at the time of his death. When an administrator has been duly appointed and qualified, the assets of the estate pass into the custody of the law as far as is necessary for the settlement of the estate and the payment of the debts and liabilities of the deceased. Except as provided by the statute, no creditor can thereafter, through any legal remedies, secure preference in the payment of his claim. The statute fixes the classification of demands against the estate, and provides for their payment in accordance therewith. (Gen. Stat. 1889, P 2864.) The preferred claims are: First, funeral expenses; second, expenses of last sickness, wages of servants, expenses of administration third, debts due the state; fourth, judgments rendered against the deceased during his lifetime. After the payment of the foregoing, and not until then, can general creditors, without special liens, demand payment of their claims. A demand against an estate may be established by a judgment of the district court. (Gen. Stat. 1889, P 2870.) But unless it is for the enforcement of a specific lien, before the judgment creditor is entitled to payment of his judgment, it must be filed and classified in the probate court. (Gen. Stat. 1889, PP 2884, 2885.) The liability of a stockholder in an insolvent corporation is of the nature of a liability on contract, and survives against the legal representatives of a deceased stockholder. (Flash v. Conn, 109 U.S. 371, 27 L.Ed. 966, 3 S.Ct. 263; Richmond v. Irons, 121 ...