Hauser v. Doyle's Estate

• Decision Date: 25 April 1936
• Docket Number: 33015,33016.
• Citation: 56 P.2d 1217,143 Kan. 719
• Parties: HAUSER v. DOYLE'S ESTATE. [*] EBRIGHT v. SAME.
• Court: Kansas Supreme Court

56 P.2d 1217

143 Kan. 719

HAUSER v. DOYLE'S ESTATE. ^[*]

EBRIGHT v. SAME.

Nos. 33015, 33016.

Supreme Court of Kansas

April 25, 1936

Syllabus by the Court.

Statutes providing for payment of expenses to county attorney in opposing claims against estate of intestate leaving no heirs held not unconstitutional as denying equal protection of law as taking property without due process, as taking private property for public use without just compensation, or as distinguishing between citizens of states in reference to descent of property (Rev.St.1923, 22--1201 to 22--1206; Const.U.S. art. 4, § 2, cl. 1; Amends. 5, 14; Const.Kan. Bill of Rights, § 17).

Statute authorizing Attorney General to take charge of opposition to claims against estate of intestate leaving no heirs held sufficiently broad to entitle Attorney General to expenses when Attorney General supersedes county attorney in opposing such claims (Rev. St.1923, 22--1206).

Laws 1913, c, 273, being R.S. 22--1201 to 22--1206, inclusive examined, and held, the provisions thereof do not violate article 4, § 2, cl. 1, of, or the Fifth or Fourteenth Amendment to, the Constitution of the United States, or section 17 of the Bill of Rights of the Constitution of the state of Kansas.

Appeal from District Court, Marion County; Cassius M. Clark, Judge.

Claims of Harold Hauser and A. M. Ebright against the Estate of Ellen Doyle. From a judgment, claimants appeal.

Reversed and remanded, with instructions.

Clarence V. Beck, Atty. Gen., and Forrest Smythe, Asst. Atty. Gen for appellants.

W. H Carpenter and John E. Wheeler, both of Marion, for appellees Mary Evalyn Hansley and associate heirs at law of Ellen Doyle.

Braden C. Johnston, of Marion, for other appellee.

THIELE Justice.

This appeal involves the allowance of expenses under R.S. 22--1204.

On March 12, 1935, Ellen Doyle, of Marion county, Kan., died intestate, leaving no known heirs. Josiah Good, of that county, was appointed administrator of her estate by the probate court of Marion county, and duly qualified as such. Decedent's personal estate was appraised at $445,015.17 and her real estate at $22,925. As might be expected, many persons, either singly or in groups, have filed petitions in the probate court alleging heirship and consequent rights to the estate.

In 1935, the statutes with reference to administration of estates of intestates dying without known heirs were amended and revised by Laws 1935, c. 168, effective May 15, 1935. In State ex rel. v. Good, 142 Kan. 434, 49 P.2d 633, decided October 5, 1935, and involving this same estate, it was held the estate should be administered under the law as it existed prior to the enactment of Laws 1933, c. 168.

Under R.S. 22--1201 et seq., it was the duty of the probate judge to notify the county attorney and the Attorney General of the existence of an estate such as that described above, and under R.S. 22--1206 the Attorney General could supersede the county attorney and perform his duties in the prosecution or defense of the interests of the common schools under the act. R.S. 22--933 to 22--935, inclusive, made provision for disposal of real estate and proceeds arising therefrom.

The Attorney General superseded the county attorney. On July 18 and 19, 1935, a hearing was had in the probate court with respect to the claims of Henry Young and six others that they were heirs. At this hearing the Attorney General was represented by two of his assistants. According to the stipulation of facts dictated into the record on a subsequent hearing in the district court, this hearing was continued in order to permit the administrator of the estate and the Attorney General to investigate the validity of the claims, and it appears the hearing had not been concluded when the present controversy was heard in the district court.

The Attorney General appointed Harold Hauser and A. M. Ebright as special assistants for the purpose of making the investigation. We are not now concerned with that investigation further than that Mr. Hauser filed in the probate court a claim for expenses in the sum of $204.63 and Mr. Ebright filed a similar claim for $136.85. A hearing was had on these claims, the administrator, the claimants to the estate, Henry Young, et al., and Messrs. Hauser and Ebright being present or represented by counsel. In orders with reference to each, the probate court held: "It is the judgment of the court after hearing said application, that the provisions of the statutes of the state of Kansas relating to the allowance of such expenses is unconstitutional, contrary to the constitution of the state of Kansas, and the constitution of the United States, and said application is hereby denied." An appeal was taken to the district court, which heard evidence thereon, the parties being present or represented as in the probate court. The district court, in deciding the matter, said: "Mr. Hauser, in these two cases relating to the Doyle estate, I question very seriously whether or not it would be constitutional to do that. I think it clearly appears from the language of this statute that that is a matter of discretion of the probate court, understand, as to whether or not they (expense claims) should be allowed. Of course all of that is subject to review. I don't think there is any abuse of discretion on the part of the probate court in disallowing the claims. That will be the order. The claims are disallowed." The journal entries stated: "The court, having heard said evidence, oral arguments and duly considered the briefs filed herein, on the 19th day of February, 1936, being a regular day of the February, 1936, term of said court, finds against the claimant and affirms the decision of the probate court of Marion county, Kansas, and denies said claim."

The motions of Hauser and Ebright for a new trial were denied, and they appeal. The matter will be discussed as though there were but one claimant.

Strictly speaking, in view of the judgment of the probate court, and its affirmance and approval by the district court, the only question presented by this appeal is the constitutionality of Laws 1913, c. 273, which appears as R.S. 22--1201 to 22--1206, inclusive. In the brief of the claimants to the estate, Henry Young, et al., is an argument against constitutionality, which has been adopted by the administrator in his brief, and which argument, we assume, is that made in the two lower courts, and which forms the basis for their decisions. Some other matters argued will also be mentioned.

It may first be noted that prior to the enactment of Laws 1935, c 168, if a person died intestate and without heirs, his property eventually went to the state permanent school fund, provision being made for payment to the rightful heir within the time stipulated. From this appellees argue the state of Kansas is a claimant, and is to be treated as a person and as a citizen of the state of Kansas. It must be remembered, however, that this state has always had statutes regulating the descent of property of an intestate. It is only failure of some person to prove heirship within the terms of those statutes that permits the property of one dying intestate and without heirs to be ultimately appropriated, not to the state of Kansas generally, but for its permanent school fund. The state has the power to regulate the descent of property; it can and does specify the shares going to widow and children; it has power to alter those shares; it has provided for the descent of property of one who dies unmarried and without issue, and the conditions following if one or both of his parents be dead. It could alter these provisions by legislative act at any time, and it could, as perhaps it should, specify the degree of consanguinity necessary that any one take as an heir at law. It has provided a course of procedure for the collection, conservation, and care of property of an intestate that it may ultimately reach the parties entitled thereto under the above statutes,...