Head v. Sutton

• Decision Date: 06 March 1884
• Citation: 31 Kan. 616,3 P. 280
• Parties: ADAM R. HEAD v. CYRENA E. SUTTON, et al
• Court: Kansas Supreme Court

3 P. 280

31 Kan. 616

ADAM R. HEAD v. CYRENA E. SUTTON, et al

Supreme Court of Kansas

March 6, 1884

Error from Saline District Court.

ADAM R HEAD, on the 5th day of June, 1876, was appointed administrator of the estate of Jonah Cadwallader, deceased and duly qualified and entered upon the discharge of his duties as such. On the 2d day of January, 1882, said administrator appeared before the probate court and made his final settlement as administrator. From the order of the court allowing said settlement, certain of the heirs-at-law to wit, Cyrena E. Sutton, Louisa Colthar, Ida Cadwallader Ameda Colthar, and Eva Cadwallader, appealed to the district court of the county of Saline; and certain others of the heirs-at-law, to wit, Hester A. Heed, Ollie Aldrich, and Emma Cadwallader, did not appeal from said order. At the May term of the district court for 1882, certain of the heirs-at-law, to wit, Cyrena E. Sutton, Louisa Colthar, Ameda Colthar, Emma Cadwallader, Ida Cadwallader, and Eva Cadwallader, appeared; but the other heirs-at-law, to wit, Hester A. Heed and Ollie Aldrich, did not appear. The court was requested to state its findings of fact and conclusions of law separately. On the 12th day of June, 1882, the court filed its findings of fact and conclusions of law as follows, to wit:

"FINDINGS OF FACT.

"1. That Jonah Cadwallader died intestate in November, 1875, leaving eight children; some of age, and some minors, and some of whom appear on this hearing. He also left property, real and personal, in this county and state. At first the heirs thought, and agreed among themselves, that they would have no administration upon the estate, but settle it among themselves, dividing the property and paying the few little debts there were. This plan was entered upon, and the said Adam R. Head, being the husband of one of the heirs, was intrusted largely with the duty of leading in such settlement of the affairs of the estate, and in such capacity sold property, collected accounts, paid many expenses; and upon a full settlement of his accounts and such transactions I find, after allowing him a reasonable compensation for services, all credits, etc., that there was at the time of appointment of administrator, a balance in his hands belonging to the heirs or estate of $ 42.50, nothing having been received at this time from the real estate.

"2. That afterward, in 1876, there being some trouble about collecting some of the outstanding accounts or claims of the estate, the conclusion was arrived at that an administrator had better be appointed; and, on the formal application of said Head and consent of said heirs, the said Head was duly appointed as such administrator, in June, 1876. He qualified and entered upon his duties as such. That at such time there was in his hands and to come to his hands as such administrator the said balance of $ 42.50 found in 'finding' No. 1.

"3. That as such administrator, the said Head proceeded to settle up the estate. All the debts are paid, and things are done up to this his final settlement, as such administrator. In the course of this administration, said Head took possession of, inter alia, certain real estate, supposing, and the heirs supposing, that it was his duty to do so; and as such administrator received the rents and profits therefrom. That aside from such rents and profits, his accounts as administrator, (not including the balance found in No. 1,) on a full settlement, after allowing all credits and compensation for services, show a balance in his hands belonging to the estate or heirs, of $ 83.07.

"4. That on a full settlement of his accounts for rents and profits of real estate, after allowing him a reasonable compensation for services, all credits, etc., there remains in his hands belonging to the heirs, the sum of $ 116.85.

"5. Mr. Head rented the real estate for the year 1876, in the month of February, and before he was appointed administrator, and by the consent of some of the said heirs.

"6. That an execution at law cannot probably be collected against the said A. R. Head."

"CONCLUSION OF LAW.

"That on this settlement Mr. Head should be discharged with the three items of balance herein found due from him, to wit, the total sum of $ 242.42."

Head brings the case here.

Judgment affirmed.

Banks & Cunningham, for plaintiff in error.

Garver & Bond, for defendants in error.

HORTON, C. J. BREWER, J., VALENTINE, J., concurring.

OPINION

HORTON, C. J.:

It is alleged that the conclusion of law reached by the court in this case is erroneous for two reasons, viz.: First, that the court found that said Head is chargeable in his representative capacity with $ 42.50, due from him to the estate before his appointment as administrator. Second, that the court found that the said Head is chargeable in his representative capacity with $ 116.85, which he collected from the rents and profits of the real estate of the intestate. There is no finding that Head prior to his appointment as administrator, had appropriated this $ 42.50 to his own use. On the other hand, the court specially finds that at the time of the appointment he actually had this money in his hands. His duty was to turn this money over to himself as administrator, and under the findings it is presumed he did so. He was required by the statute to make an inventory of everything belonging to the estate which had or might come into his hands, and to administer the same according to law. Therefore in his capacity as administrator he is chargeable with the amount received by him prior to his appointment as administrator.

It is said that if an executor de son tort obtains letters of administration, pendente lite, it legalizes his previous tortious acts. (1 Williams on Executors, 6th ed., pp. 304-310; Hill v. Curtis, L. R., 1 Eq. 90.) Generally the rule is, that letters of administration by operation of law make valid all acts of the administrator in settlement of the estate from the time of the death. They become by relation lawful acts of administration for which he must account. (Alvord v. Marsh, 12 Allen 603; Hatch v. Proctor, 102 Mass. 351; Rattoon v. Overacker, 8 Johns. 126; Matter of Falkner, 7 Hill 182. See Brown v. The State, 23 Kan. 235.)

The real estate...