Estate of Joseph Schmitz v. Schmitz

• Decision Date: 10 December 1927
• Docket Number: 27,485,27,483,27,484
• Citation: 261 P. 824,124 Kan. 546
• Parties: ESTATE OF JOSEPH SCHMITZ, Deceased, Appellee, v. JOSEPH SCHMITZ, JR., Appellant; J. E. STILLWELL et al., Appellees. ESTATE OF JOSEPH SCHMITZ, Deceased, Appellee, v. GEORGE SCHMITZ, Appellant; J. E. STILLWELL et al., Appellees. ESTATE OF JOSEPH SCHMITZ, Deceased, Appellee, v. FRANK SCHMITZ, Appellant; J. E. STILLWELL et al., Appellees
• Court: Kansas Supreme Court

261 P. 824

124 Kan. 546

ESTATE OF JOSEPH SCHMITZ, Deceased, Appellee, v. JOSEPH SCHMITZ, JR., Appellant;

J. E. STILLWELL et al., Appellees.

ESTATE OF JOSEPH SCHMITZ, Deceased, Appellee, v. GEORGE SCHMITZ, Appellant;

J. E. STILLWELL et al., Appellees.

ESTATE OF JOSEPH SCHMITZ, Deceased, Appellee, v. FRANK SCHMITZ, Appellant;

J. E. STILLWELL et al., Appellees

Nos. 27,483, 27,484, 27,485

Supreme Court of Kansas

December 10, 1927

Decided July, 1927

Appeal from Nemaha district court; C. W. RYAN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

EXECUTORS AND ADMINISTRATORS -- Statutory Classification of Claims -- Employees' Claims. Claims of employees filed against the estate of a deceased employer for wages covering a long period of service, which had terminated four years before the death of the employer, are properly classified as claims of the fifth class where it does not appear that the services were rendered during the last sickness of the employer.

Edward T. Riling, John J. Riling, both of Lawrence, and Maurice O'Keefe, of Atchison, for the appellants.

Charles H. Herold and R. M. Emery, Jr., both of Seneca, for the appellees.

OPINION

MARSHALL, J.:

Joseph Schmitz, Jr., George Schmitz and Frank Schmitz each filed a claim in the probate court of Nemaha county for wages against the estate of their father, Joseph Schmitz, Sr., for services performed by them on farms owned by Joseph Schmitz, Sr., under a contract with the latter by which each of the three was to receive better wages than he could receive anywhere else, which wages were to be paid at the death of the father. George Schmitz filed his claim for $ 6,500 for thirteen years' work; Joseph Schmitz, Jr., claimed $ 5,500 for eleven years' work; and Frank Schmitz $ 1,750 for three and one-half years' work. Each claim was allowed by the probate court for the amount named, and was classified by that court as a claim of the fifth class. Each claimant appealed to the district court where each case was tried on an agreed statement of facts, and each claim was again allowed for the amount named, and was again classified as a claim of the fifth class. From the order of classification, each claimant has appealed to this court, and each contends that his claim should have been classified as a claim of the second class.

The material parts of the agreed statement of facts, so far as the claim of George Schmitz is concerned, were as follows:

"At the time George Schmitz became twenty years of age, his father asked this claimant to work on the farms, and promised him that if he would work on the farms that he, this claimant, would receive at his father's death better wages than he could receive anywhere else, and that the better wages would be paid to him at his father's death. Acting and relying on this promise this claimant began work on his father's farms, doing everything that a farm hand and an owner of farms would do. That this claimant received nothing during the life of his father for the work he did, nor has he at any time received any pay therefor.

"That this claimant worked on his father's farms for a period of thirteen years from 1907 to 1920, and that the reasonable value of his services is five hundred dollars ($ 500) a year, or sixty-five hundred dollars ($ 6,500). That Joseph Schmitz, the deceased, was able, during his lifetime and during the time that this claimant worked on his farms, to pay off the original mortgage indebtedness of seventeen thousand dollars ($ 17,000), which sum was owed by him when he took possession of said farms."

With some variation, not here material, the agreed statement of facts concerning the claim of Joseph Schmitz, Jr., and of Frank Schmitz was the same as that of George Schmitz, except that Joseph Schmitz, Jr., worked for a period of eleven years and Frank Schmitz for a period of three and one-half years. The period of service for each terminated in 1920. It does not appear that the services were rendered during the last sickness of the father, who died on February 7, 1925. Each claim was allowed by the probate court in October, 1925.

What was the proper classification of these claims? The answer to that question involves the construction of R. S. 22-701, the material parts of which section read:

"All demands against the estate of any deceased person shall be divided into the following classes: . . . Second, expenses of the last sickness, wages of servants and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration. . . . Fifth, all demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate. . . ."

That statute in the same language is found in section 3 of chapter 188 of the Laws of 1911, which amended section 3515 of the General Statutes of 1909. Before the amendment the parts of the statute necessary for consideration read:

"All demands against the estate of any deceased person shall be divided into the following classes: . . . Second, expenses of the last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration . . . Fifth, all demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate . . ." (G. S. 1909, § 3515.)

The changes made by section 3 of chapter 188 of the Laws of 1911 in section 3515 of the General Statutes of 1909 were to take out the comma after the word "servants" in the second subdivision of the section and to strike out all of the seventh subdivision.

In Cawood v. Wolfley, 56 Kan. 281, 43 P. 236, the court said:

"All wages due a clerk for services rendered before as well as during...