Faler v. Culver
| Decision Date | 06 February 1915 |
| Docket Number | 18294.[d1] |
| Citation | 94 Kan. 123,146 P. 333 |
| Parties | FALER v. CULVER. |
| Court | Kansas Supreme Court |
It is competent for a probate court to correct and complete its record by a nunc pro tunc entry of proceedings had in that court which through accident, mistake, or neglect were not entered of record when the action was taken.
A waiver of the service of notice of the filing and presentation of a demand against an estate by the appearance of the administrator of the estate within the statutory period of limitation may be shown by such nunc pro tunc entry.
In an action for the determination of the ownership of land and the partition of the same, a defendant claimed the land through an agreement with the owner in her lifetime to the effect that, if he would remain with her and care for her and her property while she lived, he would become the owner of all her property. He further alleged that he had filed a demand in the probate court for the value of the services which he had rendered. The district court did not uphold the agreement or his claim of ownership of the land, and in the entry of judgment recognized that his claim for the value of services rendered to the owner of the land was still pending and undetermined in the probate court. Held, that the judgment in the district court did not bar him from litigating the claim in the probate court nor from recovering the value of the services actually rendered by him for which no payment had been made.
Appeal from District Court, Woodson County.
Action by R. B. Faler against J. C. Culver, as administrator of the estate of Elizabeth Speer, deceased, etc. From judgment for plaintiff, defendant appeals. Affirmed.
G. R Stephenson, of Yates Center, and E. D. Mikesell, of Fredonia for appellant.
Lamb & Hogueland, of Yates Center, for appellee.
This is an appeal from an allowance of the claim of R. B. Faler against the estate of Elizabeth Speer, deceased. She died intestate on July 16, 1907, and on August 21, 1907, J. C. Culver was duly appointed administrator of her estate, and filed his bond and published notice of his appointment ending September 13, 1907. On January 29, 1908, Faler filed a claim against the estate for services rendered to Elizabeth Speer during her lifetime, but it does not appear that written notice of the filing of the claim and of the time of its presentation to the probate court was given for some time afterward. Prior to that time, and on December 24, 1907, certain parties began an action for the partition of the real property of the estate in which Faler was made a defendant, and it was alleged, among other things, that Faler owned a 1/56 interest in the land. He filed an answer in which the allegation that he was the owner of a 1/56 interest of the land was admitted. Subsequently he filed another answer, in which reference was made to the filing of the claim in the probate court and asking for a stay of proceedings in the partition suit until the disposition of the claim in the probate court had been made, but the application was overruled. This allegation as to the claim in the probate court was later stricken out of the answer upon the motion of the administrator. In the partition action Faler alleged and claimed that he was the owner of all of the property of the estate by reason of an agreement between him and his grandmother, Elizabeth Speer, under which he was to remain with her and care for her and her property during her lifetime, in consideration of which he was to receive all the property owned by her at the time of her death. The court gave him no more than a 1/56 interest of the land, the share to which he was entitled regardless of the agreement set up in the partition action, but in the judgment entry specific reference was made to the fact that he had presented a claim in the probate court for his services against the estate which was still pending and undetermined.
It is first contended that the claim was barred by the statute of limitations, because notice of the claim was not served on the administrator within three years after he had qualified and given bond, the limitation then applicable (Gen. Stat 1901, § 2886), and that the service of notice had not been waived in writing or by an appearance in the probate court. The proceedings in the partition action showed that the attention...
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Miami County Nat. Bank of Paola, Kan. v. Bancroft
...479. It has been expressly held that a probate court in Kansas has power to correct its records by a nunc pro tunc order, Faler v. Culver, 94 Kan. 123, 146 P. 333, and that such correction may be made upon the testimony of a former judge. Faler v. Culver, supra; Plummer v. Ash, 90 Kan. 40, ......
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Taylor v. Betts, Civil 4447
... ... considered as res adjudicata in another proceeding ... between the parties. Ahlers v. Smiley, 11 ... Cal.App. 343, 104 P. 997; Faler v. Culver, ... 94 Kan. 123, 146 P. 333; 34 C.J. 797 and cases cited ... But ... defendants contend that this rule does not apply when an ... ...
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In re The Estate of Sarah E. Spruens v. Eaton
... ... 67; Scroggs ... v. Tutt, 23 Kan. 181, 188, syl. P 5; Andrews v ... Morse, 51 Kan. 30, 32 P. 640; Bank v. King, 60 ... Kan. 733, 57 P. 952; Faler v. Culver, 94 Kan. 123, ... 146 P. 333.) ... Here ... the death occurred November 12, 1914. The fifty days would be ... up January 1, ... ...
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Vance v. Hanson
..."An executor or administrator may waive service of the notice of a claim by either a writing or by appearance in court." Faler v. Culver, 94 Kan. 123, 146 P. 333; 2 Probate Law & Proc. 1826, p. 4. "Bringing in action in Federal court is sufficient presentation of a claim to an administrator......