Apple's Estate v. Apple

• Decision Date: 08 July 1939
• Docket Number: 34151.
• Citation: 92 P.2d 32,150 Kan. 162
• Parties: APPLE'S ESTATE v. APPLE et al.
• Court: Kansas Supreme Court

92 P.2d 32

150 Kan. 162

APPLE'S ESTATE v. APPLE et al.

No. 34151.

Supreme Court of Kansas

July 8, 1939

Rehearing Denied Sept. 18, 1939.

Syllabus by the Court.

A person cannot appeal from a judgment or decision unless he is aggrieved thereby.

An administrator, in his official capacity, is ordinarily not concerned with a decree of heirship or order of distribution and hence is not such an "interested party" as entitles him to appeal from such order or decree, unless it involves a construction of the proper exercise of his duties or presents a question as to his right or power to comply therewith, or where obedience thereto might subject him to liability. Gen.St.1935, 22-313, subd. 4; 22-904.

Where certain funds never became part of intestate's estate to be administered by the probate court, so that probate court's final order of distribution, in so far as it pertained to those items, was clearly void, administrator was an "interested party," and had a right of appeal. Gen.St.1935, 22-1104.

On appeal by administrator from probate court's final order of distribution of intestate's estate, which order was void in so far as it pertained to certain funds that had never become a part of the estate to be administered, the entire appeal was not required to be dismissed by the district court because of the fact that not all of the heirs were made parties to the appeal, since the district court's judgment, though it would not constitute a judgment against heirs who were not parties, would constitute an adjudication of the validity of the probate court's order.

A partial compliance with probate court's order of distribution of intestate's estate did not preclude administrator from thereafter complaining concerning that portion of the probate court's order which was void.

The statute providing that appeals to courts other than the Supreme Court shall be taken and proceedings therein had in the same manner as provided for appeals to the Supreme Court except where special provision with reference to appeals is made by statute, does not apply to appeals from the probate court to the district court, in view of the fact that the Probate Code contains its own special provision for proceedings on appeal. Gen.St.1935, 22-1102, 60-3308.

The fact that no notice of appeal to the Supreme Court, from order and judgment of district court after an appeal from probate court, was served on intestate's alleged heir whose residence or whereabouts was unknown, did not require dismissal of the appeal to the Supreme Court. Gen.St.1935, 22-1102, 60-3308, 60-3823.

1. An administrator, in his official capacity, is not ordinarily concerned with a decree of heirship or order of distribution and is not such "interested party" as entitles him to appeal from such order or decree, unless it involves a construction of the proper exercise of his duties, or presents a question as to his right or power to comply therewith or where obedience thereto might subject him to liability.

2. The record of an action tried in the district court on an appeal by an administrator from a decree of heirship and final order of distribution, examined and held: (1) The interest of the administrator was such as entitled him to the right of appeal; (2) the partial compliance with an order of distribution which order was void only in part, did not, under the circumstances narrated in the opinion, bar his right of appeal; (3) the motion to dismiss the entire appeal to the district court on the ground the appeal was not perfected as to all heirs, was rightly overruled, in view of the single and particular issue which was properly determinable by that court; (4) the motion to dismiss the appeal to this court is denied.

Appeal from District Court, Cherokee County; V. J. Bowersock, Judge.

Proceeding in the matter of the estate of Walter T. Apple, deceased, wherein Spencer B. Apple and L. L. Cardin were appointed coadministrators. From a decree of heirship determining that Chauncey W. (Butler) Apple was not an heir of Walter T. Apple, deceased, and from the order of distribution, L. L. Cardin, in his capacity as an administrator, appealed to the district court. From an order of the district court overruling a motion to dismiss the appeal, from a finding of heirship, and from a final order of settlement and distribution made by the probate court, and from a judgment of the district court, Harriet E. Apple, administratrix of the estate of William B. Apple, deceased, appeals.

Action remanded, with directions to district court to dismiss appeal from probate court as to all except one issue relating to certain items, and to reverse the probate court's order as to those items.

F. W. Boss, Marc Boss, and C. B. Skidmore, all of Columbus, for appellant.

C. E. Rumery, of Baxter Springs, and Grover C. James, of Joplin, Mo., for appellee.

WEDELL Justice.

This is an appeal from an order of the district court overruling a motion to dismiss an appeal by one of two co-administrators of the estate of Walter T. Apple, deceased, from a finding of heirship and final order of settlement and distribution made by the probate court and also an appeal from the judgment of the district court.

While two estates are mentioned in this lawsuit, the estate with which we are primarily concerned and in which the order of heirship and distribution was made, is the estate of Walter T. Apple, deceased. Walter T. Apple died intestate, July 18, 1932, and left surviving only collateral heirs. The co-administrators of his estate were Spencer B. Apple, his brother, and L. L. Cardin, his brother-in-law. Spencer B. Apple was also the attorney for the estate. L. L. Cardin appealed from the decree of heirship and from the final order of distribution in his capacity as administrator. His complaint on appeal to the district court concerned the finding of the probate court that Chauncey W. (Butler) Apple, had not been legally adopted and was therefore not an heir of the deceased. His complaint, likewise, concerned the resulting order of distribution which directed the administrators to distribute a total sum of money then held in a special fund by L. L. Cardin, in the sum of $13,473.06, to the respective heirs in accordance with the decree of heirship. That particular fund, with the exception of two items in the respective amounts of $1963.91 and $608.30, consisted of disbursements which had been made, on orders of the probate court during the process of administration, as the share of Chauncey W. (Butler) Apple, on the theory, at that time, that he was a brother of the deceased. The residence or whereabouts of Chauncey W. (Butler) Apple, was unknown and for that reason the disbursements had been set aside to him in this special fund. The item of $1963.91 constituted the amount which had been decreed, in the sale of lands under three separate partition suits, to be the share of Chauncey W. (Butler) Apple, as a brother and heir of the deceased. No appeals had been perfected from any of the judgments in the partition suits at the time of the final decree of heirship and distribution in the probate court and the time for such appeals had then expired. The item of $608.30 constituted oil royalties from lands of the deceased. The record does not disclose that the probate court had at any time directed the administrators to take possession of the real estate of the deceased and of the income therefrom on the ground it was necessary for the payment of decedent's debts. On appeal in the district court the administrator contended the probate court had no jurisdiction over these particular funds of $1963.91 and $608.30.

The deceased had a brother, William B. Apple. Chauncey E. Apple was one of the three heirs of William B. Apple, deceased. Chauncey E. Apple, on final order of settlement and distribution, contended that Chauncey W. (Butler) Apple, had not been legally adopted by the parents of Walter T. Apple, deceased, and was therefore not entitled to inherit as a brother of Walter T. Apple, deceased. The probate court sustained the contention. Harriet E. Apple, was the administratrix of the estate of William B. Apple. She moved to have the appeal of L. L. Cardin, administrator, dismissed in the district court. The grounds for her motion will be considered presently. The motion was overruled as to all parties except Spencer B. Apple, administrator. The district court tried the question of heirship and decided that Chauncey W. (Butler) Apple, was legally adopted by the parents of the decedent and was entitled to inherit as a brother of the decedent. It is from that final judgment and from the order overruling her motion to dismiss the appeal of the administrator, that Harriet E. Apple, administratrix of the estate of William B. Apple, appeals to this court. In order to avoid confusion in names, we shall hereafter refer to Chauncey W. (Butler) Apple, as Butler.

Before considering the merits of the appeal we are confronted with the motion of L. L. Cardin, administrator and appellee, to dismiss the appeal to this court. The basis of the motion is that Butler, whose rights are involved in this appeal, was not notified of the appeal as required by G.S. 1935, 60-3306. The pertinent portion of that statute reads: "A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; or, if such service cannot be made within the state service may be made by a notice, properly addressed to such persons or their attorneys of record at their places of residence, deposited in the mail, if their places of residence are known. Proof of such service shall be made by affidavit, and in case the residence...