Hill v. Grand Lodge, I.O.O.F. of Kansas

• Decision Date: 12 June 1943
• Docket Number: 35766.
• Citation: 157 Kan. 34,138 P.2d 438
• Parties: HILL et al. v. GRAND LODGE, I. O. O. F., OF KANSAS.
• Court: Kansas Supreme Court

138 P.2d 438

157 Kan. 34

HILL et al. v. GRAND LODGE, I. O. O. F., OF KANSAS.

No. 35766.

Supreme Court of Kansas

June 12, 1943

Syllabus by the Court.

Under law in effect in 1932, title to and right of possession of real property devised passed to devisee upon probate of will notwithstanding an unsuccessful action to contest will.

The three-year statute of limitations applied to action by administrators to recover from devisee for services performed and expenses incurred in management of realty devised but not involved in the administration, under oral contract for such management. Gen.St.1935, 60-306, Second.

Where administrators appointed in 1932 made oral contract with devisee to manage and care for realty devised and not involved in administration until it was sold or during administration, and final account of administrators was filed in November, 1935, administrators' individual cause of action under the contract "accrued" in December 1935, when property was turned over to devisee, and three-year statute began to run at that time. Gen.St. 1935 60-306, Second.

Administrators' claim against devisee of realty for services and expenses connected with management and care of realty devised but not involved in the administration, based on oral contract between parties, was a "personal claim" against devisee and not claim by them as administrators against estate.

Administrators' claim against devisee for services and expenses in management of devised realty, not involved in the administration, under oral contract between parties, should never have been presented to probate court, and probate court had no authority to do anything with it except to dismiss it.

The time during which a person is prevented from exercising his legal remedy by pendency of legal proceedings should not be counted against him in determining whether limitations have barred his right, but rule applies only where proceedings are such as to prevent enforcement of the remedy by action.

The fact that administrators presented to probate court their individual claim against devisee based on oral contract as to care of devised realty not involved in administration of estate, and that probate court had no jurisdiction and erroneously considered and allowed the claim, did not prevent administrators from suing devisee in district court so as to toll three-year statute. Gen.St.1935, 60-306, Second.

Actions brought by administrators as individuals against devisee on oral contract relating to services and expenses in management of devised realty did not toll running of three-year statute where no valid service was had on devisee and actions were dismissed, since no action has been "commenced" within statute when service of summons is quashed. Gen.St.1935, 60-306, Second, 60-311.

Action by devisee against administrators, as such, to recover money which administrators were holding and which they had been ordered by probate court to deliver to devisee, in which administrators filed cross-petition as individuals for services and expenses in connection with managing devised realty under oral contract, which cause of action was stricken by court order, and in which administrators' motion to intervene as individuals was denied, did not toll three-year statute of limitations. Gen.St.1935, 60-306, Second.

Statute authorizing plaintiff to commence a new action within one year after reversal of judgment for plaintiff or other failure of action does not apply where, at the time of reversal or failure, there remains any portion of the time limited for suing. Gen.St.1935, 60-311.

An administrator of an estate, appointed in 1932, made an oral contract with the owner of real property not involved in the administration, to manage and care for the real property until it was sold, or during the time of his administration upon the estate. The final account of the administrator was filed in November, 1935, and the management and care of the real property was turned over to the owner the next month. Held: (1) His claim for services performed and expenses incurred in managing and caring for the real property was a personal claim against the owner of the real property and not a claim as administrator against the estate; (2) he was not justified in presenting his claim for such services and expenses to the probate court for allowance against the estate; and (3) the probate court had no authority to do anything with such a claim so presented except to dismiss it. Further held: The individual claim against the owner of the real property accrued when the administration of the estate was completed and the management and the care of the real property was turned over to the owner; that the three-year statute of limitations, G.S.1935, 60-306, 2d cl., applied to an action to recover from the owner of the real property; that the statute of limitations had not been tolled by any of the matters alleged in the petition and discussed in the opinion, and that the petition filed July 22, 1940, showed on its face that plaintiffs' cause of action was barred by the statute of limitations.

Appeal from District Court, Shawnee County, Diivision No. 1; George A. Kline, Judge.

Action by Harry T. Hill and others against the Grand Lodge of the Independent Order of Odd Fellows of Kansas, a corporation, to recover for services performed and expenses incurred under an oral contract to manage real property. From an order overruling its demurrer to plaintiffs' amended petition, defendant appeals.

Reversed with directions.

J. B. Wilson, of Lawrence, and J. L. Hunt, Lester M. Goodell, Margaret McGurnaghan, John H. Hunt, and Geo. M. Brewster, all of Topeka, for appellant.

Harry W. Colmery, of Topeka, for appellees.

HARVEY Justice.

This was an action to recover for services performed and expenses incurred by plaintiffs under an oral contract with defendant to manage certain real property. Defendant has appealed from an order overruling its demurrer to plaintiffs' second amended petition, contending the petition shows on its face that plaintiffs' cause of action is barred by the statute of limitations, G.S.1935, 60-306, 2d cl. This is the sole question presented. We shall speak of the parties as they appeared in the trial court in this case.

The petition was filed July 22, 1940. The pertinent allegations of the second amended petition may be summarized as follows Charles Abraham Haldeman, a resident of Anderson county, died September 4, 1932, leaving a will giving all his property (except one tract of land) to defendant. The estate bequeathed and devised to defendant consisted of personal property of the value of about $100,000 and about 1800 acres of land situated in Kansas and Illinois. On September 23, 1932, plaintiffs were appointed administrators c. t. a. of the estate. They duly qualified as such and entered upon their duties as administrators of the personal property of the estate. The personal property was more than ample to pay all claims against the estate and costs of administration. We interpolate: Under the facts stated and the law of this state at that time, plaintiffs, as such administrators, had nothing to do with the real property devised to defendant. Title to and right of possession of the real property passed to defendant upon the probate of the will, notwithstanding an unsuccessful action to contest the will. Bradley v. Hill, 141 Kan. 602, 42 P.2d 580. The petition alleged that soon after plaintiffs were appointed as administrators a named, duly authorized representative of defendant, "made and entered into an oral agreement with these plaintiffs, under the terms of which the said defendant required the plaintiffs, and the plaintiffs jointly agreed, to manage, look after and care for the real estate which had been devised to the defendant under said will, until it could be sold or during the pendency of the administration of said estate." That pursuant to this contract plaintiffs proceeded to and did, from December, 1932, through the years 1933, 1934 and 1935, rent the real estate, keep it improved, pay the taxes and expend other necessary sums, all of the reasonable value and amount of $7,365.34, itemized statements of which were attached to the petition. Plaintiffs also proceeded with the administration of the estate up to and including the approval of their final report as administrators on November 18, 1935, and plaintiffs turned over said real estate to defendant in December, 1935. On the final report filed by plaintiffs as administrators they took credit for the expenditures and disbursements claimed for looking after the real estate, which claim was allowed by the probate court, from which allowance defendant appealed to the district court of Anderson county. That court made an order changing the venue to the district court of Coffey county, where the matter was duly tried and adjudicated on April 6, 1937. By this adjudication the court disallowed generally all matters relating to the management of the real estate which had been devised to defendant for the reason that plaintiffs, as administrators, had no jurisdiction over the real estate, the court stating in its ruling: "If there is to be an accounting with reference to the real estate, it is between the devisees and the administrators, individually, and not in their official capacity." A copy of the journal entry of the judgment of the court was attached as an exhibit to the petition. Thereafter the administrators, in compliance with the order of the district court of Coffey county, filed an amended final report, which was approved by the probate court on July 12, 1937, showing a net amount of $97,653.58, which the probate court ordered plaintiffs, as administrators, to pay to defendant. Plaintiffs, as...