Holden v. Spier

• Decision Date: 11 October 1902
• Docket Number: 12,128
• Citation: 65 Kan. 412,70 P. 348
• Parties: C. S. HOLDEN v. FRANK R. SPIER et al., as Administrators, Etc
• Court: Kansas Supreme Court

70 P. 348

65 Kan. 412

C. S. HOLDEN v. FRANK R. SPIER et al., as Administrators, Etc

No. 12,128

Supreme Court of Kansas

October 11, 1902

Decided July, 1902.

Error from Saline district court; R. F. THOMPSON, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, PROBATE COURT -- Distribution of Estates. The probate court, having jurisdiction to make settlement and distribution of a decedent's estate, may determine the share of each distributee, and to that end can inquire into and determine the indebtedness of the distributee to the estate and order a deduction of the same from his share.

2. PRACTICE, PROBATE COURT -- Set-off -- Lapse of Time Immaterial. The equitable right to retain the debt of a distributee from his distributive share is not affected by the lapse of time, and the deduction of the debt should be made, although an action to recover the same would be barred by the statute of limitations.

3. ACCOUNTS -- No Particular Form Necessary. No particular form of keeping accounts is prescribed by law in order to make them admissible in evidence, and their admissibility is to be determined from their appearance and character, the employment and education of the one who kept them, the manner in which other and similar accounts were entered in the book, and the circumstances of the case.

Benson & Harris, and H. A. Richards, for plaintiff in error.

Z. C Millikin, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was a proceeding instituted in the probate court of Saline county, in the matter of the settlement and distribution of the estate of Nathaniel Head, deceased. C. S. Holden was an heir at law of Nathaniel Head, and was entitled to a share of the estate, which was in course of administration. A partial distribution of the funds belonging to the estate had been ordered by the probate court, and before making distribution the administrators applied to the court for a citation requiring Holden to appear and show cause why certain sums due from him to the estate on account and on a promissory note should not be retained from his distributive share, and that the court should determine and direct how much should be paid to Holden out of the funds of the estate. In response to the citation, he appeared and alleged that he had no knowledge of any indebtedness on account; that the note mentioned had been paid at maturity; and, further, that if anything had been due from him to the estate on either accounts or note, it was barred by the statute of limitations. He asked the court to order the administrators to make payment of his distributive share without deductions on account of his alleged indebtedness to the estate.

Upon a hearing the probate court held that he was indebted to the estate and that the amount of the same should be retained out of his distributive share, and ordered distribution upon that basis. He appealed to the district court, and when he reached that tribunal he asked that the proceedings be dismissed because the probate court was without jurisdiction in such cases. The application was denied, and the court, upon the proof offered, found that Holden was indebted to the estate upon the account and the note in the sum of $ 902.44, and that the amount should be deemed a part of the fund for the distribution, and retained from the share which the defendant would otherwise be entitled to receive.

Several grounds of error are alleged here, and the first is that the probate court had no jurisdiction to determine the alleged indebtedness of Holden to the estate, nor to render judgments on such ordinary liabilities against living persons. This cannot be regarded as an action by the administrators to recover money from Holden, nor to obtain a judgment in favor of the estate against him. It was within the power of the probate court to ascertain the extent of the estate and in whose hands the funds or assets of the estate were held; and, also, to make such distribution as the law requires. Holden was claiming a share of the estate, and it devolved on the probate court to determine the amount of this share, and whether any portion of it was already in his hands. Before distribution could be made, it was necessary to ascertain the full amount of the fund to be distributed, and this could not be done until it was determined how much of the fund Holden held. It was said in Proctor v. Dicklow, 57 Kan. 119, 45 P. 88:

"That court having jurisdiction to make distribution of the estate, it follows as a necessary incident to its jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate." (See, also, Keith v. Guthrie, 59 Kan. 200, 52 P. 435; Lietman's Executor v. Lietman, 149 Mo. 112, 50 S.W. 307, 73 Am. St. Rep. 374; Woern. Adm. § 142.)

Any one interested in the distribution can invoke this jurisdiction, and, therefore, it was competent for the administrators to apply to the probate court to have determined how much of Holden's share remained to be paid, and as an incident it must decide the extent of his indebtedness to the estate. It is to be noted that a judgment for the amount of the indebtedness against him was not asked, but it was rather to determine what amount of the fund should be paid to him; and it may be further remarked that he appeared in the probate court without questioning its jurisdiction, and asked for a decision as to the amount of the share to which he was entitled.

Exception was taken to the admission of a book of accounts purporting to have been kept by Head, and which contained an account with Holden. It was found among the effects of the deceased two days after his death. It was in his handwriting and contained numerous accounts of others than Holden, and apparently it was the only book of accounts kept by him. The account in question was under the name of Charles S. Holden and was constituted of entries of debit and credit running over a considerable period of time, and while not as formal or regular as would have been kept by a merchant, we find nothing on its face to throw discredit upon it. No particular form of keeping accounts is prescribed by law in order to make them admissible in evidence, and the question of the competency of accounts is to be determined from their appearance and character, the employment and education of the one who keeps them, the manner in which other and similar accounts were entered, and the circumstances of the case. The same...