Bowen v. Lewis

• Decision Date: 08 April 1967
• Docket Number: No. 44710,44710
• Citation: 198 Kan. 605,426 P.2d 238
• Parties: Beldon BOWEN, Administrator c. t. a. of the Estate of Marcelline M. Ward, Deceased, Appellant, v. Norman P. LEWIS, Appellee.
• Court: Kansas Supreme Court

Page 238

426 P.2d 238

198 Kan. 605

Beldon BOWEN, Administrator c. t. a. of the Estate of Marcelline M. Ward, Deceased, Appellant, v. Norman P. LEWIS, Appellee.

No. 44710.

Supreme Court of Kansas.

April 8, 1967.

Syllabus by the Court.

1. Although summary judgment should not be rendered if there remains a genuine issue of fact, the issue of fact is not genuine preventing summary judgment unless it has legal probative force as to the controlling issue.

2. The duty of the executor or personal representative to collect debts due the estate of his decedent is not changed by the fact that he is the debtor, and no bar of limitations should operate in favor of the executor or personal representative as long as he remains accountable for the general assets of the estate.

3. The provisions of K.S.A. 60-520 providing for acknowledgment of liability as extending the time for bringing an action anticipates a voluntary new promise to pay made to the creditor or his representative, and an acknowledgment to another creditor will not suffice.

4. The listing of an executor's debt to the estate in the inventory is not an acknowledgment that the debt is collectible preventing the executor from raising the statute of limitations as a bar to the collection of the indebtedness.

5. The trial court has jurisdiction to decide only such issues as are raised by the pleadings or defined at the pretrial conference, subject to limited exceptions not material here.

6. In an action to bring assets into a decedent's estate the record is examined and it is held, the trial court did not err in granting summary judgment for defendant on the ground the claim was barred by the statute of limitations.

Charles A. Walsh, Concordia, argued the cause, and William J. Walsh, Concordia, was with him on the briefs for appellant.

Charles W. Harris, Wichita, argued the cause, and Lee R. Stanford, Concordia, and Paul M. Buchanan, Wichita, were with him on the briefs for appellee.

HATCHER, Commissioner.

This appeal stems from a controversy over the statute of limitations in an action to bring assets into a decedent's estate.

The facts material to the statute of limitations upon which summary judgment was rendered may be summarized.

Mrs. Marcelline M. Ward was for many years the owner of the Baron's Hotel in Concordia, Kansas. During the year 1953, Mrs. Ward became involved in an income tax controversy with the federal government for the years 1943 through 1952. The amount involved was some $93,000 plus interest.

Mrs. Ward, on May 19, 1953, transferred title to real property on which the hotel was located to her son, Norman Lewis, and to her daughter, Margaret L. Rogers. On June 2, 1953, the Internal Revenue Service filed tax liens on the property of Norman Lewis claiming that as a transferee, he had become liable for his mother's personal income tax. On June 5, 1953, Lewis and his sister reconveyed, by quit claim, to their mother all interest or ownership in the real property. A federal tax controversy then arose during the mother's lifetime in which the Internal Revenue Service was attempting to collect the mother's taxes from the son, Norman Lewis, the defendant herein. The mother died on August 10, 1955. On August 20, 1955, the mother's will was admitted to probate and Norman Lewis was appointed and qualified as executor.

Norman Lewis served as executor until October 1, 1962, when, on his own motion and resignation, he was relieved therefrom and Beldon Bowen was appointed as the successor administrator c. t. a.

On September 29, 1964, the action which we now have under consideration was filed. Additional facts may be taken from the allegations of the pleadings.

As to the item in the petition which was subjected to summary judgment, it was alleged:

'Plaintiff further alleges, that in the course of the administration of the estate of said decedent, the defendant was involved in a controversy with the Treasury Department of the United States Government over the failure of decedent to pay taxes legally assessed upon the income and the property of the deceased, Marcelline M. Ward, and in the course of the controversy, it came to light that the defendant, prior to the death of his mother, had appropriated $13,300.00 of money belonging to the said Marcelline M. Ward. Thereafter and on October 31, 1956, the defendant filed in the Probate Court of Cloud County, Kansas where the estate was being administered, a verified supplemental inventory reflecting an indebtedness by the defendant to the estate of his mother in the sum of $12,300.00, which was then owing by him and was and is an asset of the estate of said decedent.' (Emphasis supplied.)

The answer insofar as material to the specific item in controversy alleged:

'Further answering the defendant states that the sum of $13,300.00, mentioned in paragraph seven of the plaintiff's petition was in fact a gift from his mother Marcelline M. Ward, to him and not a loan.

'Further answering the defendant alleges that the verified supplemental inventory mentioned in plaintiff's petition paragraph seven, and a collateral agreement made by him to the U. S. Treasury Department, Internal Revenue Service, in conjunction therewith a copy of which is hereto attached, marked Exhibit 'A', and made a part hereof, were obtained from the defendant by the U. S. Treasury Department, Internal Revenue Service by duress of the defendant, in this, that the officials of said agency then and there threatened the defendant that if he did not do so, he would be prosecuted to the full extent of the law for the offense as an accessory to an alleged Federal Income Tax evasion of his mother Marcelline M. Ward, and the defendant, solely in consequence of such threats and in the fear that said officials would execute them, made delivered and filed said instruments and not otherwise.'

The answer also raised the statute of limitations as an alternative defense. Exhibit A, mentioned in the answer, will be considered later in more detail.

On October 21, 1965, defendant filed his motion for summary judgment on the ground the claim was barred by the statute of limitations. The motion was presented by oral argument of the parties and then submitted on briefs. On December 16, 1965, the trial court submitted its memorandum decision in which it concluded that the claim was based on an oral contract and barred by the three year statute of limitations. Summary judgment was entered for the defendant.

The plaintiff has appealed.

The issues are somewhat confused due to the fact that there were other controverted claims between the parties which are not material to the determination of the specific question before us. The appellant discusses some fourteen alleged errors in his brief. It may help us to sort out the pertinent issues if we stay close to the general statement found in appellant's brief, which reads:

'* * * This appeal is concerned only with the question of whether or not the claim of the estate arising out of the written collateral agreement is barred by the statute of limitations.

'It is to be noted that the collateral agreement attached as Exhibit 'A' to the Defendant's Amended Answer, is neither dated nor signed. In other words, it is an unsigned copy of the document. This document, together with the Supplemental Inventory, mentioned in paragraph 7 of the petition and paragraph 6 of the Amenned (sic) Answer, constitute the basis of appellant's claim that appellee was indebted to his mother's estate in the sum of $12,300.00, together with interest at the legal rate.'

The appellant first suggests that discovery was incomplete when the motion for summary judgment was considered and that the record clearly reflects material issues of fact. It may be said that appellant's position would be correct if the case were to be tried on the merits. However, such matters did not reflect on the question of the statute of limitations. If the case was to be determined by the statute of limitations the factual issues to which reference is made were immaterial. Although summary judgment should not be rendered if there remains a genuine issue of fact (Secrist v. Turley, 196 Kan. 572, 412 P.2d 976; Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964.), the fact is not genuine unless it has legal probative force as to a controlling issue. In City of Ulysses v. Neidert, 196 Kan. 169, 409 P.2d 800, we held:

'Where a defending party pleads a statute of limitations and moves for summary judgment, and it appears that the action is barred by the appropriate statute of limitations and there is no genuine issue as to any material fact in connection with such statute, or such motion, then the motion for summary judgment should be granted.' (Syl. 3.)

Although not necessary to the conclusion reached by the trial court in its memorandum decision, the trial court does appear to hold that the statute of limitations continued to run in appellee's favor and against the estate while he was executor. Appellant takes serious issue with this ruling. We are inclined to agree with appellant. The general rule is found in 33 C.J.S. Executors and Administrators § 182, p. 1156, where it is stated:

'The duty of the personal representative to collect debts due the estate of his decedent is not changed by the fact that he is the debtor; but he must, if solvent or able to pay, pay the debt and account for the amount thereof as assets; and the security given for the debt is not discharged until payment. No bar of limitations should operate in favor of the representative as long as he remains accountable for the general assets of the estate, but where the debt is barred before the executor takes office he is not chargeable with the debt. * * *' (Emphasis supplied.)

Although no Kansas cases are cited in the briefs touching directly on the question and our limited search has disclosed none, we have no hesitancy in placing our approval on the general rule as above...