Calkin v. Hudson

• Decision Date: 23 January 1943
• Docket Number: 35716.
• Citation: 133 P.2d 177,156 Kan. 308
• Parties: CALKIN v. HUDSON ET AL.
• Court: Kansas Supreme Court

133 P.2d 177

156 Kan. 308

CALKIN v. HUDSON ET AL.

No. 35716.

Supreme Court of Kansas

January 23, 1943

Rehearing Denied March 12, 1943.

Syllabus by the Court.

Where administrator de bonis non with will annexed was ordered by probate court to bring action for possession of realty which belonged to testator's estate, so as to subject it to payment of legacies as will provided, if personal assets should be insufficient to pay legacies, administrator was the "proper party plaintiff" to maintain the action. Gen.St.1935, 22-834, 60-403.

In action by administrator with will annexed for a declaratory judgment touching his right to sell certain realty to raise funds to pay legacies provided for by testator's will petition alleging that testator authorized executors to sell enough of his estate to pay legacies to testator's sisters and gave remainder of estate to testator's brothers, but that legacies to certain of the sisters had never been paid, and that all personalty of estate had been expended, lost or dissipated, was sufficient to raise legal questions requiring decision of court.

"Laches" exists when there is undue delay in assertion of a legal right before a tribunal competent to enforce it.

Lapse of time alone does not constitute "laches" but if such delay has misled others to their prejudice, the bar of laches may be invoked.

Where executor failed to file annual statements of his account, to pay legacies, and to file his final report for more than 20 years after it was due, without legatees taking any effective steps to collect legacies, administrator with will annexed was barred by "laches" from obtaining a judgment authorizing him to sell realty of estate to raise funds to pay legacies. Rev. St.1923, 22--907, 22--922, 22--1003.

1. When an administrator de bonis non with the will annexed was ordered by the probate court to bring an action for possession of real estate which had belonged to his decedent testator's estate, so as to subject it to the payment of legacies as the will provided if the personal assets should be insufficient to pay them, he was the proper party to maintain the action.

2. Plaintiff's petition had no formal defects of pleading which rendered it insufficient to raise the legal questions requiring the decision of the court.

3. Where an executor of an estate failed to file annual statements of his account, and failed without excuse to pay legacies provided by the testator's will, and failed to file his final report for more than twenty years after it was due, and where the legatees took no effective steps during that long interval to collect their legacies which were a conditional charge on the testator's real estate which had been devised to others, but where after such twenty years' delay the legatees caused the removal of the executor and the appointment of an administrator de bonis non who brought an action to quiet his title to the real estate which had been devised to residuary devisees, to have it subjected to the satisfaction of the stale demands of the legatees, and where in the interval interests of divers third parties had attached to the property, it is held that the action of the administrator de bonis non was barred by laches, and judgment for defendants should be directed.

Appeal from District Court, Barber County; Clark Wallace, Judge.

Action by Charles C. Calkin, administrator with the will annexed of the estate of Charles Hudson, deceased, against Darwin Hudson, administrator with the will annexed of the estate of Lavina Hudson, deceased, and others, for a declaratory judgment touching the plaintiff's right to sell certain realty to raise funds to pay legacies provided for by the will of Charles Hudson, deceased, wherein Jo Maxine Hudson intervened. From an adverse judgment, the defendants appeal.

Reversed and cause remanded with instructions to render judgment for defendants.due, without legatees taking any effective steps to collect legacies, administrator with will annexed was barred by "laches" from obtaining a judgment authorizing him to sell realty of estate to raise funds to pay legacies. Rev.St.1923, 22-907, 22-922, 22-1003.

Joe T Rogers, of Wichita (Roy L. Rogers, of Wichita, on the brief) for appellants.

Charles C. Calkin, of Kingman (Oren Wheat and J. Raymond Eggleston both of Medicine Lodge, on the brief), for appellee.

DAWSON Chief Justice.

This was an action by the administrator c/t/a of the estate of Charles Hudson, late of Kingman county, to obtain a declaratory judgment touching his right to sell certain lands in Barber county to raise funds to pay legacies provided for by the will of the testator. The lands involved were part of the estate of Charles at his death in 1916.

The legal question upon which the propriety of the action and of the correctness of the trial court's decision turns upon facts about which there is no material dispute but which must be stated at length. Preliminary to such statement, some antecedent background to this lawsuit will be helpful:

The late William T. Hudson of Kingman county died testate in 1907. He left four sons, Charles, Frank, Ben and William, and four daughters, Kate, Maude, Nell, and Ethel who was then about six years old. Owing to the ill-health of Charles the eldest son, the testator named his next son Frank as executor. The terms of that will are of no present concern except a provision that the estate should be kept intact and operated and managed until Ethel should attain the age of eighteen years--a matter of twelve years ahead.

Frank qualified as executor of his father's estate and so continued until 1918, by which time all four daughters had married. In that year, either on May 25 or November 28--(both dates are given in the record)--all the brothers and sisters and their spouses, entered into a family settlement of their respective interests in the estate of their father William T. Hudson, in which for specified considerations, part payments of which were acknowledged, all the interests of the four sisters and of their brother Ben, in the estate of their father, were sold and conveyed to their brother Frank Hudson. Whether the approval of the probate court to that family settlement was given does not appear. However, in the lax state of the law at that time that court's approval was unnecessary since apparently no third parties were interested in the estate. Hirt v. Bucklin State Bank, 153 Kan. 194, 109 P.2d 171, and Syl. 4.

Coming now to the matters of immediate concern, it appears that Charles Hudson died testate on December 19, 1916. By his will, he appointed his brother Frank and another as executors of his will. The will was offered for probate on December 27, 1916, and probated January 16, 1917. About the same time Frank Hudson qualified as executor and the other named executor eventually dropped out. Three provisions of the will of Charles, in part, read:

"I *** do hereby authorize [my executors] to do whatsoever things are necessary in and about the premises to carry out the provisions of this will and I do hereby authorize them to sell enough of the estate, real and personal, to pay the bequests herein made but no real estate shall be sold until the personal property is exhausted.

*****

"Fourth: *** I do hereby give, will and bequeath to my four sisters, Mrs. Kate Clark, Miss Maude Hudson, Mrs. Nellie Bolin and Miss Ethel Hudson the sum of $500 each to be paid by my executors out of my estate.

"Fifth: I hereby give, will and bequeath to my three brothers, Frank Hudson, Ben Hudson and William Hudson, to be divided equally among them, share and share alike, all the rest and residue of my estate, real and personal, to have and to hold the same unto them and their heirs and assigns forever in fee simple."

In 1921, the youngest sister, Ethel, applied to the probate court for a citation directed to Frank Hudson executor of the estate of Charles to show cause why that estate was not settled and closed, and in that citation the fact was mentioned that a legacy of $500 to each of the sisters was devised by the will of Charles. The executor made some response to the citation, alleging that Ethel (and her sisters) had been paid their legacies. The court set a time for a hearing. If that hearing was held and any decision or order made pursuant thereto the records of the probate court do not show it; and neither party here concerned has made any effort to have that record restored or a nunc pro tunc order entered as good practice would require. Gaston v. Collins, 146 Kan. 449, 455, 72 P.2d 84.

Frank Hudson, executor, took possession of the Barber county lands, either as executor or as one of the residuary devisees under the fifth clause of his brother's will, and thereafter he managed and disposed of them as follows: The lands were subject to a mortgage of $3,000 given by Charles in 1915. That mortgage was released in 1920, but not recorded until 1928.

In 1926, Frank received a quitclaim deed to the interest of his brother William. Ben Hudson died in 1926, and Frank Hudson acquired Ben's interest in the Barber county lands in a partition suit against Ben's heirs.

In 1934 Frank Hudson and his wife Lavina Hudson were divorced, and Frank by quitclaim deed conveyed 240 acres of the land to her. To correct some defect in that deed he and his next wife executed to Lavina a second quitclaim deed in 1935, and about the same time he executed to Joe T. Rogers a quitclaim deed to the remaining 80 acres of the Barber county land.

On April 1, 1938, Mrs. Kate Hudson Clark executed an acknowledgement that she had received from the personal representatives of the estate of Charles the sum of $500 in full satisfaction and discharge of the special bequest and legacy in her behalf under her br...