Beck v. Good

• Decision Date: 09 April 1938
• Docket Number: 33763.
• Citation: 77 P.2d 968,147 Kan. 578
• Parties: BECK, Atty. Gen., v. GOOD et al.
• Court: Kansas Supreme Court

77 P.2d 968

147 Kan. 578

BECK, Atty. Gen., v. GOOD et al.

No. 33763.

Supreme Court of Kansas

April 9, 1938

Syllabus by the Court.

The statute providing for administration of estates of those dying intestate and without heirs, which was in force prior to 1935, and which provided for payment out of estate of expenses of county attorney in making inquiries and in examination of witnesses regarding rights of claimants to estate, and which also provided that Attorney General could supersede the county attorney, did not empower probate court to allow fees of Assistant Attorneys General appointed by Attorney General to look after litigation, or fees of assistant county attorneys appointed for same purpose, and to order such fees to be paid out of the estate. Rev.St.1923 22--933 to 22--935, 22--1201 to 22--1206; Laws 1935, c. 168.

The statute providing for the administration of estates where one dies intestate and without known heirs as it was in force prior to the enactment of chapter 168 of the Laws of 1935 provided for payment out of the estate of the expenses of the county attorney in making inquiries and in the examination of witnesses regarding the rights of claimants to the estate. It also provided that the Attorney General could supersede the county attorney. Held, that the probate court is without power to allow the fees of Assistant Attorneys General appointed by the Attorney General to look after the litigation as an item of expense of the Attorney General or fees of assistant county attorneys appointed by the county attorney for the same purpose and to order these fees paid out of the estate.

Appeal from District Court, Marion County; Cassius M. Clark, Judge.

Judgment affirmed.

SMITH J., dissenting.

Clarence V. Beck, Atty. Gen., and J. S. Parker, Asst. Atty. Gen., for appellant.

W. H Carpenter, W. R. Carpenter, and John E. Wheeler, all of Marion, for appellees.

Braden C. Johnston, of Marion, for administrator.

SMITH Justice.

This was an application for the allowance of attorney fees out of an estate. The probate court denied the application. On appeal the district court denied it. Claimant appeals to this court.

On or about March 12, 1935, one Ellen Doyle died intestate a resident of Marion county, Kan. She had no known heirs. On the date of her death she was seized of a large amount of property, both real and personal. On or about March 14, 1935 on a proper application an administrator for her estate was appointed. This administrator duly qualified and has been acting ever since. He has given bond in the amount of $407,000. Approximately eighty petitions have been filed in behalf of persons who claimed to be heirs of Ellen. The matter is being adjudicated pursuant to the provisions of R.S. 22--1201 to 22--1206, also R.S. 22--933 to 22--935. See State ex rel. v. Good, 142 Kan. 434, 49 P.2d 633. If no person is adjudged to be an heir, then eventually the proceeds of the estate will be paid into the permanent school fund.

The above provisions placed the duty of looking after the interest of the permanent school fund upon the county attorney of the county of which deceased was a resident. Under the provisions of R.S. 22-- 1206 it was the duty of the Attorney General to see that the act was enforced. Whenever in the opinion of the Attorney General the public interests required it, the Attorney General might supersede the county attorney. Acting under the provisions of the above statute, the Attorney General has superseded the county attorney in this case. The Attorney General appointed Harold M. Hauser and A. M. Ebright and P. K. Smith as special assistants for the purpose of making the necessary investigation and to assist him and his regular assistants in looking after the litigation involved. Early in the history of the litigation these lawyers appeared in their capacity as Special Assistants to the Attorney General. Incidental to this appearance they each filed in the probate court claims for their out-of-pocket expenses. These claims were denied by the probate court, and on appeal by the district court. The probate court refused to allow the claims upon the ground that the statute relied upon was unconstitutional. When the claims were appealed to this court, however, other questions were argued and passed upon as well. See Hauser v. Estate of Doyle, 143 Kan. 719, 56 P.2d 1217. Among these was an argument that the provision for payment of expenses of the county attorney was personal to him and did not avail the Attorney General in event he superseded the county attorney. This court upheld the constitutionality of the act and held that, where the Attorney General superseded the county attorney, his expenses should be paid from the estate.

On account of some motions that were filed the matter was considered again in Hauser v. Estate of Doyle, 144 Kan. 1, 59 P.2d 674. In this opinion the question of whether the expenses of Assistants to the Attorney General other than those specifically provided for in the statutes could be paid out of the estate was decided. This court said: "We know of no reason why the Attorney General may not exercise his judgment and discretion as to the manner and method in which he performs the duties obligatory on him under the statute. He may have concluded that it would be less expensive to have attorneys close at hand to represent his office rather than go personally or send assistants from Topeka. He and his regular assistants may have been fully engaged in looking after other of the state's business. Whatever may have been his reasons for designating the claimants as his assistants, it was not prohibited by statute; it was an act in the performance of his statutory duty. And, finally, it made no difference either to the administrator or the claimants to the estate what particular individual performed the duties."

From the time of their appointment shortly after the death of Ellen Doyle until the present time Hauser and Ebright and Smith, the latter two being law partners, have conducted investigations, made inquiries and interviewed witnesses in different parts of the United States and on one occasion in Ireland. Incident to the inquiry in Ireland was the employment of one John Deagen, a reporter, and James Cody, a solicitor, both in Ireland. By July, 1937, Hauser, Ebright, and Smith had performed considerable service for the attorney general in the litigation. The Attorney General filed a claim in the probate court for an allowance out of the assets of the estate for the amount of expenses incurred by him with reference to an item of a fee for services performed by Hauser, Ebright, and Smith. The application was denied as to the fees of the above.

This order was sustained by the district court and is here on appeal. There is no question as to the reasonableness of the fee asked. The only question is as to the power of the probate court.

It is the theory of the Attorney General that this should be treated as expenses of the Attorney General. The theory of some of those who claim to be heirs and of the administrator is that this item is not properly expenses but should be considered a fee for services performed by these lawyers. The statute pursuant to which this claim was made is R.S. 22--1204. That section is as follows: "Whenever in the opinion of the probate judge the interests of the common schools so require, the probate court may make an allowance out of the estate to defray the reasonable expenses of the county attorney in making inquiries and in the examination of witnesses touching the rights of claimants to the estate of any such deceased person; but no expense to the estate shall be incurred under the provisions of this act where there are one or more heirs or devisees residing in the county, or where any one or more of the heirs or devisees are personally known to the probate judge."

It will be noted that the above section provides that "the probate court may make an allowance out of the estate to defray the reasonable expenses of the county attorney in making inquiries and in the examination of witnesses touching the rights of claimants to the estate of any such deceased person."

In this particular litigation we have already settled the question of whether the Attorney General may supersede the county attorney. We have held also that, having superseded the county attorney, the Attorney General is authorized under his general powers to appoint assistants to handle the litigation other than the regular assistants authorized by statute, and to have their expenses, such as hotel bills, railroad fare, telephone tolls, and similar items paid out of the estate. See Hauser v. Estate of Doyle, supra. It should be noted here that the probate court and the district court allowed the application of the Attorney General as to the fee of Deagen and Cody, the Irish solicitor and reporter. All parties have treated these two items as "expenses" within the meaning of the statute quoted.

We should approach the consideration of this question with the fact established that Hauser, Ebright, and Smith have performed services in excess of making inquiries and examining witnesses. As a matter of fact, they were in charge of the litigation.

Until the enactment of chapter 168 of the Laws of 1935, the estates of persons who died without known heirs and without a will were administered under the provisions of R.S. 22--1201 to 22--1206 and 22--933 to 22--935. These sections provided a comprehensive procedure for the collection, conservation, and care of such estates. The entire matter of descents and distribution is governed by statute. The disposition to be made of an estate of one who dies intestate and without known heirs is entirely a matter of statutory provision. Thus we...