Bitzer v. Smith
| Decision Date | 20 January 1944 |
| Docket Number | 36032.] |
| Citation | 145 P.2d 148,158 Kan. 83 |
| Parties | BITZER et al. v. SMITH et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where jurisdiction of probate court was properly invoked by executor in 1940 praying for final settlement of testator's estate which had been under his charge and supervision of probate court since 1923, probate court had power to construe will, designate devisees, determine all things necessary to final winding up of estate, and give executor final discharge. Gen.St.Supp. 1941, 59-1a01 et seq 59-301.
Under Probate Code, probate court's original jurisdiction was extended to invest it with all necessary legal and equitable power to deal judicially with administration of estates, and errors must be corrected by timely appeal to district court. Gen.St.Supp.1941, 59-2247, 59-2249, 59-301, 59-2401 et seq.
Decree of probate court within its jurisdiction settling testator's estate, construing will, and designating devisees, being unappealed from, was binding adjudication not subject to collateral attack in subsequent action to quiet title to realty involved. Gen.St.Supp.1941, 59-1a01 et seq 59-2401 et seq., 59-2247, 59-2249, 59-301.
Where the jurisdiction of the probate court was properly invoked by an executor in 1940 praying for final settlement of a testator's estate which had been under his charge and the supervision of the probate court since 1923, that court had power to construe the will, to designate the devisees entitled to the real estate devised to them, and to determine all things necessary to the final winding up of the testator's estate and to give the executor his final discharge; and the probate court's decree, being unappealed from, was a binding adjudication, and not subject to collateral attack in a later independent action to quiet title based, in part, upon the probate court's decree of 1940.
Appeal from District Court, Washington County; Charles A. Walsh Judge.
Action by Donald A. Bitzer and another against M. S. Smith, Jessie Longley Minshal, and others, to quiet title to land devised. From an adverse judgment, plaintiffs and defendant Minshall appeal.
Reversed with instructions.
E. R Sloan, of Topeka (L. W. Rosenkranz, of Washington, and W. Glenn Hamilton, Floyd A. Sloan and Eldon R. Sloan, all of Topeka, on the brief), for appellants.
F. R. Lobaugh, of Washington, for appellees.
This was an action to quiet title to a half section of Washington county land which was devised by the will of the late Sylvanus S. Longley thus:
The testator, a resident of Washington county, died on July 26, 1923, and his will was admitted to probate on September 27, 1923. On that date an executor was appointed and qualified. On October 20, 1924, upon application of the executor, the probate court made an order interpreting that provision of the will which conferred upon the executors the authority quoted above, pertaining to that portion of the estate devised to Jessie Longley Minshal. The probate court held that provision to be null and void. There was about $9,000 in cash in the hands of the executor available for distribution at the time that ruling was made, and Mrs. Jessie Longley Minshal received her share of that sum as did her brothers and sisters. Following that ruling of the probate court in 1924 the executor never did assume control of that portion of her father's real estate devised to Mrs. Minshal.
Early in 1940 the executor filed a petition in the probate court for final settlement. Notice thereof was duly published. The three children of Mrs. Minshal filed an answer alleging that they were of full age and were familiar with the terms of their grandfather's will and claimed no interest in the property. On March 15, 1940, hearing was had before the probate court. It found that the estate was fully administered, and that the only property for distribution was the real estate of present concern. The court also found that William H. Longley, one of the sons of the testator, had died and that the share of the said William had been conveyed by his widow and sole heir to the remaining devisees of the testator; that the children of Mrs. Minshal had no interest in the real estate; and that it should be assigned in equal shares to the five surviving devisees including Mrs. Minshal. All of which was done; the estate was closed; and the executor was discharged.
Some two and a half years later, on September 23, 1942, the five devisees entered into a contract with Donald A. and Charles L. Bitzer, plaintiffs herein, to sell them this half section of land for $12,800, and agreed to furnish a merchantable title. Some question was raised touching the sufficiency of Mrs. Minshal's title, so the parties concerned agreed to place her share of the purchase price in escrow to await the result of a test case to determine the question.
Hence this lawsuit to quiet the title of the purchasers. The trial court appointed F. R. Lobaugh, Esquire, to serve as trustee for the unborn children of Mrs. Minshal. The trustee filed an answer which challenged the jurisdiction of the probate court to make the order of October 20, 1924, construing the will of testator in respect to the restrictions imposed by its terms on the devise and bequest to Mrs. Minshal. He alleged that the probate court did not have jurisdiction to render the decision and order announced by it on March 15, 1940, when the matters pertaining to the final settlement of the estate were before it for determination.
Mrs Minshal answered, pleading her title...
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