Cooper v. Ives

• Decision Date: 05 January 1901
• Docket Number: 11,767
• Citation: 62 Kan. 395,63 P. 434
• Parties: JAMES F. COOPER v. LUCINA M. IVES et al
• Court: Kansas Supreme Court

63 P. 434

62 Kan. 395

JAMES F. COOPER v. LUCINA M. IVES et al

No. 11,767

Supreme Court of Kansas

January 5, 1901

Decided January, 1901.

Error from Cherokee district court; A. H. SKIDMORE, judge.

STATEMENT.

THIS was an action brought by James F. Cooper to subject certain real estate in Cherokee county belonging to the estate of Willard Ives, deceased, to the payment of an indebtedness arising out of the fact that the deceased was a stockholder in the Western Farm Mortgage Trust Company, an insolvent corporation, organized under the laws of the state. Plaintiff in error recovered a judgment against the trust company, on which execution was issued and returned unsatisfied.

Willard Ives, in his lifetime, was a stockholder in said corporation holding stock of the par value of $ 5000. He lived in the state of New York, and died in April, 1896. The judgment against the trust company in favor of Cooper was rendered in December, 1896. Ives left a widow, Lucina M. Ives, one of the defendants in error, but no children or direct descendants. The deceased made a will, in which he bequeathed about half his estate to charitable and religious societies. Ross C Scott was appointed executor by the surrogate court of Jefferson county, New York.

In June, 1898, plaintiff in error filed a petition in the court below making said executor a party, together with Lucina M Ives, the widow, and several other persons, designated as heirs of the deceased. The petition set up the judgment against the corporation, the issuance and return of the execution thereon, the fact that Ives in his lifetime was the owner of shares of stock aggregating $ 5000, and prayed judgment for that amount against all the defendants. An affidavit for attachment was filed at the beginning of the suit, alleging that all the defendants were non-residents of the state. The property in controversy was then attached. Service by publication was had on all the defendants. On July 13, 1898, plaintiff below amended his petition by inserting a description of the land owned by Ives in Cherokee county at the time of his death, and alleging further that no letters testamentary of administration had been issued on the estate of Willard Ives within the state of Kansas, nor any copy of the appointment of Scott as executor filed in any probate court in this state. The prayer asked that the described real estate be declared subject to the payment of the said indebtedness, and that the same be sold, etc. Publication service was again had on defendants after this amendment was made to the petition.

The defendants, some forty-six in all, with the exception of Ross C. Scott, executor, and Lucina M. Ives, the widow, answered. They alleged that the shares of stock in the trust company upon the death of Ives, passed to Scott, the executor, and became assets of the estate; that Ives died in Jefferson county, New York, leaving ample personal estate sufficient to pay all his debts, including plaintiff's claim; that the supreme court of New York, sitting in Jefferson county, had, by a judgment and decree in a suit for the construction of the will of said Ives, decided that the answering defendants were entitled to the real estate left by said Ives, including the land described in the petition, and that the construction of the will by the New York court is, by a rule of comity between states, entitled here to full faith and credit; that by reason of said decree the answering defendants were tenants in common of the real estate in Kansas, and that Scott, the executor, had no interest therein.

Plaintiff's reply to this answer was, in effect, a general denial.

After the issues were so made up, Ross C. Scott, the executor, died, and Lucina M. Ives, the widow, was appointed executrix in his stead by the surrogate court of Jefferson county, New York. On May 25, 1899, the plaintiff filed an amended and supplemental petition, making no change in the parties defendant except to add the name of Lucina M. Ives as executrix, and making the religious societies, legatees under the will, defendants. There is an allegation in this pleading that all the legacies and debts of the estate have been paid except the claim of plaintiff. Service by publication was again had on all the defendants. All of them, with the exception of Lucina M. Ives, personally and as executrix, filed an answer substantially like that made to the first amended petition. They also stated that the Western Farm Mortgage Trust Company was indebted to the estate of Ives, deceased, in the sum of about $ 4600 on its guaranty of bonds sold to Ives. In the reply these bonds were alleged to have been paid. On the trial it was shown that all the debts and legacies due from the estate, except plaintiff's, had been discharged, and about $ 50,000 paid to Lucina M. Ives, the widow. No administration was had in this state. There was no evidence in support of the set-off pleaded by defendants.

After the evidence had been introduced, the plaintiff dismissed his action as to Lucina M. Ives, executrix of the will of Willard Ives, deceased. Thereupon the court rendered a general judgment in favor of the defendants below. Cooper, the plaintiff in error and plaintiff below, has come here by proceedings in error.

Judgment reversed.

Stebbins & Evans, for plaintiff in error.

R. M. Cheshire, for defendants in error.

SMITH J. DOSTER, C. J., concurring. JOHNSTON, J., dissenting.

OPINION

SMITH, J.:

Under the statutes of this state, where the real estate in controversy is situated, Lucina M. Ives, the widow of the testator, inherited the whole of it. (Gen. Stat. 1899, § 2459; Gen. Stat. 1897, ch. 109, § 19.) The descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situated. (Woern. Am. Law Adm. § 168.) The decree of the supreme court in Jefferson county, New York, in the suit brought by the widow against the legatees and others, in which there is a recital that the defendants below were heirs of Willard Ives, deceased, and entitled to participate in the distribution of his estate, can have no force here.

The deceased left surviving him no children, brother, sister, or descendants of any, or father or mother, and the decree rendered in the New York court could in no manner affect the descent of the property to the widow, as fixed by our statute; nor could the New York court pass on the title to real estate in Kansas. In the case of Carpenter v. Strange, 141 U.S. 87, 105, 11 S.Ct. 960, 966, 35 L.Ed. 640, 647, it was held that the supreme court of New York was without power to adjudge the conveyance by a testator to the defendant of lands in Tennessee to be fraudulent and void, and to annul the same. The court said:

"The real estate was situated in Tennessee and governed by the law of its situs, and while by means of its power over the person of a party a court of equity may in a proper case compel him to act in relation to property not within its jurisdiction, its decree does not operate directly upon the property nor affect the title, but is made effectual through the coercion of the defendant; as, for instance, by directing a deed to be executed or canceled by or on behalf of the party. The court has no inherent power, by the mere force of its decree, to annul a deed or to establish a title."

See, also, McCartney v. Osburn et al., 118 Ill. 403, 9 N.E. 210; Watkins v. Holman et al., 41 U.S. 25, 16 Pet. 25, 10 L.Ed. 873.

It is stated by counsel for defendants in error that the ground on which the court below rendered judgment in favor of the parties represented by him was that after the dismissal of the action against the executrix the plaintiff below was in the position of seeking to recover on a stockholder's liability, with no stockholder in court against whom a judgment could be obtained. This brings us to a consideration of the necessity of the presence of the executrix of the will of Willard Ives, deceased, before the court in an action to enforce such a liability. It will be observed that Lucina M. Ives, the widow, was a party in her individual capacity only, and was in default for answer.

In McLean v. Webster, 45 Kan. 644, 26 P. 10, a creditor of a decedent, without taking out letters of administration was allowed to subject real estate in the possession of the heir to the satisfaction of the creditor's claim, there being no other debts against the estate. The petition in the McLean case described the land which descended to the heir, and prayed that the same be held subject to the payment of the debt sued on. There was an attachment in that case as in this, ancillary to the main action. In both cases the allegations in the petitions and the relief demanded were intended to operate as an equitable attachment of the real estate sought...