Brasfield's Estate, In re

• Decision Date: 28 January 1950
• Docket Number: 37657,Nos. 37546,s. 37546
• Citation: 214 P.2d 305,168 Kan. 376
• Parties: In re BRASFIELD'S ESTATE (two cases). McCLURE et al. v. BRASFIELD. McCLURE et al. v. NEWKIRK.
• Court: Kansas Supreme Court

Page 305

214 P.2d 305

168 Kan. 376

In re BRASFIELD'S ESTATE (two cases).

McCLURE et al. v. BRASFIELD.

McCLURE et al. v. NEWKIRK.

Nos. 37546, 37657.

Supreme Court of Kansas.

Jan. 28, 1950.

Syllabus by the Court.

1. In this jurisdiction an administrator has the duty of ferreting out and marshaling the assets of an intestate's estate and in the performance of that duty he represents creditors as well as heirs.

2. The provisions of the Kansas Probate Code require the appointment of an administrator for the estate of an intestate resident decedent when petitioned for by creditors of the estate even though its known assets appear to be inconseqential and of little value.

3. By an appeal to district court from an order denying administration of an estate on jurisdictional grounds the probate court does not lose jurisdiction over other phases of the administration proceeding and if the district court decides that administration of the estate is required a judgment directing the probate court to proceed to appoint an administrator is proper.

4. Disputed questions as to what constitute assets of an estate are premature and not involved on appellate review of an order directing the appointment of an administrator.

5. G.S.1947 Supp. 59-2239, providing that no creditor shall have any claim or lien upon the property of a decedent, other than liens existing on the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of the decedent is clearly a statute of limitations and is to be given the same force and effect as limitation statutes appearing in the code of civil procedure.

6. Under the provisions of the probate code the institution of a proceeding by creditors for the appointment of an administrator is required in order that claims may be filed against the estate of a decedent and is to be regarded as tantamount to the commencement of an action for that purpose.

7. The rule in this jurisdiction is that if a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during the time the restraint incident to the proceedings continues.

8. The record in a proceeding by creditors to have an administrator appointed for the purpose of enabling them to exhibit demands against the estate of an intestate resident decedent examined, and it is held, (1) the petition was filed in ample time to permit the appointment of an administrator within one year from the date of the decedent's death and (2) failure to obtain the appointment of the fiduciary within such period of time was not due to any lack of diligence on the part of the petioning creditors but to litigation by persons interested in seeing to it that the estate should not be administered.

9. Held further, (1) that under the conditions and circumstances in paragraph 8 of the syllabus, and more fully set forth in the opinion, the running of the probate statute of nonclaim or limitation, G.S.1947 Supp. 59-2239, is suspended during the pendency of the legal proceeding resulting in the petitioners' failure to obtain the appointment of an administrator and (2) that the trial court properly overruled demurrers, to claims filed by the petitioners in probate court after the appointment of a special administrator, based solely upon the ground that no general administrator had been appointed for such decedent's estate within one year from the date of his death.

Homer V. Gooing, of Wichita, argued the cause, and Howard T. Fleeson, Wayne Coulson, Paul R. Kitch, Dale M. Stucky and Donald R. Newkirk, all of Wichita, were with him on the briefs for the appellants.

John F. Eberhardt, of Wichita, argued the cause, and George Siefkin and Samuel E. Bartlett, both of Wichita, and Irwin Snattinger, of Topeka, were with him on the briefs for the appellees.

The opinion of the court was delivered by

PARKER, Justice.

These two cases, consolidated after being appealed to this court, originated as probate court proceedings. The all deceisive issue in each requires judicial construction of the Kansas Probate Code.

The facts responsible for the proceedings as initially instituted are relatively unimportant to a decision of the appellate issues and need not be detailed. At the moment essential features of those facts and the primary issues involved can be joined in one statement thus:

Eight months after the death of Cecil L. Brasfield, who died on August 22, 1947, a resident of Sedgwick county, the appellees as tort creditors of the decedent filed a petition in the probate court of that county fully setting forth the nature of their claims against him as an alleged negligent wrongdoer and asking for the appointment of a general administrator for his estate. Decedent's father and mother answered stating their son left no property subject to administration and hence there was no legal basis for the relief sought by the penied Thereupon the probate court denied the petition and refused to appoint a fiduciary as therein requested on the ground there was no estate requiring administration. Upon appeal the district court of Sedgwick county, on July 13, 1948, found the probate court's action was erroneous, reversed its order, and directed it to proceed to appoint an administrator. Appeal No. 37,546, perfected on September 10, 1948, by the father and mother, is from that order and judgment.

Within a few days after rendition of this district court judgment the tort creditors petitioned the probate court for, and obtained the appointment of, a special administrator to accept exhibition of and make defense to their demands against the decedent's estate in the same manner as a regular administrator might do, if acting. Thereafter, and on August 21, 1948, they filed petitions for the allowance of those demands in probate court. Later they procured their transfer to the district court for trial. There the special administrator demurred to all claims so transferred on the single ground they were barred because the petitioning creditors had failed to obtain the appointment of an administrator for the estate of the decedent Brasfied on or before August 22, 1948. This demurrer was overruled. Appeal No. 37,657, perfected by the special administrator, seeks a reversal of that order.

The foregoing brief factual statement should perhaps be supplemented by a statement relating to stipulated facts in both the probate and district courts. There the parties agreed decedent was a resident of Sedgwick county on the date of his death and that appellees were creditors within the meaning of the probate code, entitled to petition for the appointment of an administrator for his estate. They also stipulated, although the record with respect thereto is not clear and leaves much to be supplied by inference, that the known tangible assets of the estate of Cecil Brasfield, who was killed in the automobile accident giving rise to appellees' claims, were of the approximate value of $25 and insufficient to defray funeral and administration expenses. However, it cannot be said, as appellants suggest, the stipulation purported to cover all assets of the estate or that the parties were in agreement respecting its intangible assets. As to them we are constrained to hold, the record clearly discloses appellees contended the estate had certain rights under the omnibus clauses of an automobile insurance policy, covering liability incurred by decedent while he was driving his father's automobile, involved in the accident, which constituted assets, while appellants insisted, that notwithstanding and irrespective of such policy, the only assets consisted of the tangible property referred to in the stipulation.

Appllants specify two errors in the rendition of the judgment involved in the first appeal. We now direct our attention to the first specification charging the district court with error in reversing the order of the probate court denying the petition for appointment of an administrator. They state the question involved under this assignment of error is whether it is proper, over the objection of heirs at law, who have paid a decedent's funeral expenses, to appoint an administrator for his estate where it consists entirely of clothing and personal effects which do not exceed $25 in value. At the outset we pause to observe this question, and much of appellants' argument dealing with it, erroneously assumes a situation where creditors, notwithstanding they have petitioned for administration of the estate of a decedent whose funeral expenses have been paid by his heirs, have positively stipulated there are no assets in the estate, tangible or intangible, exceeding the amount required to reimburse the heirs for advanced funeral expenses. Here, as we have heretofore pointed out, the petitioning creditors have made no such stipulation and are insisting to the contrary.

Thus, in view of the record, it appears the actual question involved, under the first specification of error, is whether admitted creditors of a resident intestate decedent are entitled to the appointment of an administrator for administration of his estate over objection of his heirs at law when the known tangible assets of his estate are conceded by the petitioning creditors to be less than the amount required to pay funeral expenses and costs of administration.

When analyzed the principal argument advanced by appellants in support of their position on the question just stated seems to be that the existence or nonexistence of assets is the test to be applied in determining whether administration of a resident intestate's estate is required under our statute and that failure of a petitioning creditor on the hearing of his petition for letters of administration to establish assets in an amount more than sufficient to pay funeral ...