Carter v. Carter
| Decision Date | 02 July 1960 |
| Docket Number | No. 41909,41909 |
| Citation | 353 P.2d 499,187 Kan. 74 |
| Parties | Benjamin L. CARTER and Harrlet I. Harkins, Appellants, v. Richard H. CARTER and Lucile Carter, his wife; Mildred M. Higdon; and Benjamin F. Carter, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Plaintiffs sought partition of 480 acres of land and an accounting for income and profits covering a five year period and an order for payments due under such accounting based on payment of their individual respective one eighth shares according to a probate court decree determining heirship under G.S.1949, 59-2250. Defendants sought the setting aside of a homestead of 160 acres to Benjamin F. Carter, the father, and also asked for partition of the remaining 320 acres. As more fully reflected in the opinion, Jennie, the mother, who died intestate in 1945, was owner of the 480 acres. She was survived by her husband, Benjamin F. Carter, and their four children (plaintiffs and defendants herein) who were decreed to be her heirs by the probate court in 1948. The mother and father had begun living on part of the land in question in 1903 and by 1908 had acquired and occupied all of it. After Jennie's death, the father and defendant Richard lived thereon and carried on the ordinary farming activities. The only income received by each of the plaintiffs from the land was a one eighth share of the landowners' oil royalities. The record examined and it is held: The trial court was correct in allowing a witness to refresh his recollection from memoranda, and it was correct in its decree with respect to the accounting as well as in its decree setting aside to the father a homestead of 160 acres.
2. A witness may refresh his recollection by reference to memoranda relating to the subject matter to which his attention is directed on the stand, whether the memoranda are in such form as to be competent as independent evidence, and he may testify, providing he then has an independent recollection of the subject matter. The weight and force of the testimony is for the determination of the jury, or the trial court when it is the trier of the facts.
3. The statute granting jurisdiction and power merely to determine heirship does not include jurisdiction to pass on claims against a decedent's estate or to determine an unrelated controversy which might affect the interest which would ordinarily pass to an heir under the law of intestate succession.
4. While it is true that under G.S.1949, 59-2250 heirs are permitted to wait for more than a year after the death of their intestate decedent without administration and then have the descent to his property determined in a short form probate proceeding, it does not follow that under this statute such heirs are authorized to litigate as among themselves their respective interests in the decedent's estate.
5. One of the functions of a decree of descent under G.S.1949, 59-2250 and 59-2251 is that it releases the title of the heirs from the conditions of administration and furnishes them with legal evidence to establish title.
Karl V. Shawver, Paola, argued the cause, and Karl V. Shawver, Jr., Paola, and Myron S. Steere, Ottawa, were with him on the briefs for appellants.
William S. Bowers, Ottawa, argued the cause, and B. F. Bowers, Ottawa, was with him on the briefs for appellees.
This is an appeal by Benjamin L. Carter and Harriet I. Harkins, plaintiffs below, from the trial court's judgment relating to a partition, an accounting, granting Benjamin F. Carter a homestead, and other orders of the trial court including the overruling of plaintiffs' motion for new trial and denial of appointment of a receiver.
When necessary for clarity we shall refer to the parties by their first names except Benjamin F. Carter who will be referred to as the father. Mildred was originally named as a plaintiff in the petition but on May 5, 1959, she withdrew as such, answered, and appeared thereafter in the trial court along with the other defendants, and thus is an appellee here.
Jennie June Carter owned 480 acres of land in Franklin county at the time of her death on November 15, 1945, and on October 18, 1948, the probate court of that county, under G.S.1949, 59-2250 and 59-2251, determined that the following persons were her heirs and were owners of the land as tenants in common: the father, widower one half; Richard and Benjamin, sons, one eighth each; Mildred and Harriet, daughters, one eighth each. At the time of the above determination the father made no written selection of a homestead as provided in G.S.1949, 59-2235. About four years prior to the trial, oil production was commenced on the 480 acres. Two of the seven wells were located on the 160 acres presently claimed as a homestead by the father but the entire oil royalties were divided one half to the father and one eighth to each child. These preliminary facts were admitted at an early stage in the proceedings and were contained in the trial court's first five findings of fact.
At the outset plaintiffs asked to inspect all documents in defendants' possession concerning transactions involving farming operations on the 480 acres since November 15, 1945, but under the limitations of G.S.1949, 60-306, Sixth, we are concerned only with the years since 1954.
It would be useless and confusing to undertake to detail all of the vague and conflicting evidence that was reflected in the record but we shall refer to pertinent facts necessary for determination of the issues here involved.
The suit was commenced to partition the entire 480 acres which acreage resembled the shape of the letter 'U' with the claimed homestead forming the bottom portion of the 'U'. An accounting was also sought of rents and profits together with an order that payments be made to those entitled thereto under such accounting.
From the record it appears that Jennie inherited some of the land and she, along with her husband, the father herein, began living on the land in 1902 or 1903 and continued to acquire more acreage in her name until she owned the entire 480 acres in question where they lived from 1908 until Jennie's death in 1945. Thereafter Richard and the father continued to live on and farm the 480 acres together until 1951 when Richard married Lucile. After the marriage of Richard and Lucile, they lived in the home with the father. Lucile at all material times was employed at Mode O'Day in Ottawa and had a personal income. She cooked the evening meal and did the houseword in the evenings. After Jennie's housework in the evenings. After Jennie's but at the time of the trial Richard was doing most, if not all, of the work.
Mildred, Richard, and the father set up a claim of a homestead for the father as to the 160 acre tract with home improvements. They also requested partition but only of the remaining 320 acres and denied the right of Benjamin and Harriet to demand an accounting for 1953 or prior years.
Benjamin and Harriet, for reply, alleged estoppel, waiver, and abandonment on the part of the father to assert any right of homestead against his cotenants by reason of his failure to comply with G.S.1949, 59-2235 and further alleged that by withholding Jennie's will, Richard and the father were barred from any right in the estate.
From the evidence, the trial court made these pertinent findings of fact:
'7. The defendants spend $200.00 in building a pond in 1956 and should receive credit accordingly.
'8. The income for said 320 acres for the year 1959 has not been taken into account and is yet to be determined.
The trial court also made the following conclusions of law:
'1. Benjamin F. Carter is entitled to a homestead in the amount of 160 acres which he now claims and the same is set aside as his homestead.
'2. The remaining 320 acres will be partitioned as provided by law.
'3. The plaintiffs, Benjamin L. Carter and Harriet I. Harkins, are each allowed a judgment against Richard H. Carter and Benjamin F. Carter, jointly, for one-eighth of the landlord's share for the years 1954 through 1958, in the amount of $629.52.'
The trial court incorporated into its journal entry of judgment the findings of fact and conclusions of law. Its judgment held the plaintiffs to be the owners of the 480 acres as tenants in common, that the interest of each of the four children was an undivided one-eighth and that of the father an undivided one half; that the 160 acres was the homestead of the father and was not subject to partition at this time and the remaining 320 acres should be partitioned according to law.
The trial court further ordered that Benjamin and Harriet each have judgment against Richard and the father jointly in the sum of $629.52.
The application of Benjamin and Harriet for appointment of a receiver pending the appeal to this court was overruled.
Plaintiffs assign a number of specifications of error but only three questions are raised and they will be discussed in the order presented.
No. 1. Did the court err in the admission of erroneous evidence?
This question refers particularly to the testimony of Richard who within a few days next preceding the trial had made some notes from memory due to the fact that the farm records he and his father had in their possession had disappeared from the bedroom of their home. These notes related to the crops, income, expenses, etc., of the...
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