In re Bourke's Estate

• Decision Date: 10 March 1945
• Docket Number: 36257.,36256
• Citation: 159 Kan. 553,156 P.2d 501
• Parties: In re BOURKE'S ESTATE et al. (two cases). v. BOURKE. BOURKE
• Court: Kansas Supreme Court

156 P.2d 501

159 Kan. 553

In re BOURKE'S ESTATE et al. (two cases).

BOURKE v. BOURKE.

Nos. 36256, 36257.

Supreme Court of Kansas

March 10, 1945

Rehearing Denied April 19, 1945.

Appeal from District Court, Atchison County; Lawrence F. Day, Judge.

Proceeding in the matter of the partnership estate of William Bourke otherwise known as 'Burke', deceased, on the application of John Bourke as alleged surviving partner for administration of partnership estate opposed by David Bourke consolidated with proceeding in the matter of the estate of William Bourke, deceased, on the claim of John Bourke opposed by David Bourke. From adverse judgments in each proceeding, David Bourke appeals.

Judgment in each instance reversed with directions.

Syllabus by the Court.

1. Where in a proceeding instituted in probate court by an alleged surviving partner to have himself designated as the one having authority to take over possession and management of the property of the late partnership and close up its affairs, as contemplated by the provisions of the probate code, it appears that more than three years prior thereto a similar proceeding had been instituted in the same court and when transferred to the district court had been dismissed by it on the ground the initial court had no jurisdiction of the subject matter therein involved and it further appears that such judgment had become final and conclusive because unappealed from, the second proceeding is barred under the doctrine of res judicata and cannot be maintained.

2. The fact that a judgment of a court of competent jurisdiction may have been erroneous does not preclude application of the principles of the doctrine of res judicata when such judgment has not been corrected by appeal or supplemental proceedings and has been allowed to become final and conclusive through inaction on the part of the litigant against whom it was rendered.

3. When the record title to real and personal property stands in the name of a decedent on the date of his death and thereafter another person asserts an interest and ownership therein based upon a partnership relation the claim so asserted by him is a 'demand' against the estate of such decedent within the meaning and intent of that term as used in G.S.1943 Supp. §§ 59-2236 to 59-2241, incl., which must be exhibited in the manner and within the time required by their provisions.

4. The record examined and held, the claim of an alleged surviving partner as described in the opinion was a demand against the estate of a deceased person and since it was not exhibited within nine months from the date the administrator of such decedent's estate first published his notice to creditors it was barred by G.S.1943 Supp. 59-2239.

O. P. May, of Atchison (B. P. Waggener and Ralph M. Hope, both of Atchison, on the brief), for appellant.

John S. Haney, of Hiawatha (Roy V. Nelson, of Hiawatha, and Maurice P. O'Keefe and Karl W. Root, both of Atchison, on the brief), for appellee.

PARKER Justice.

These are consolidated cases. No. 36257 involves the question of whether the trial court properly allowed claims of an individual to a one-half interest in the estate of a deceased person while No. 36256 has to do with a proceeding attempting to qualify a surviving partner for administration of an alleged partnership estate.

The record is somewhat confusing as well as complicated and we shall here relate only those facts and proceedings required to permit a proper disposition of the appeals.

William Bourke, an unmarried man, died intestate on October 14, 1940, a resident of Atchison County. On the date of his death he was the record owner of 700 acres of land located in Atchison and Brown counties. So far as listing for taxes is evidence of ownership, he was also the owner of considerable personal property. Shortly after his death John Bourke, a brother, who for some years prior thereto had been living with him, laid claim to a dance hall building located on a quarter section of the real estate as his sole and individual personal property by virtue of certain contract and in addition claimed to be the owner of an undivided one-half interest in all other property owned by him, both real and personal, under an alleged partnership agreement. What we have just related suffices as a general statement of the nature of the claims made by John Bourke to the property of his deceased brother and it will be unnecessary, as will be presently disclosed, to detail the circumstances under which he contends he acquired his right, title and interest therein.

Turning now to consideration of the situation on which John Bourke, hereinafter referred to as appellee, relies as establishing his position in case No. 36257 the record discloses the following action by him in the proceeding originally instituted for the purpose of procuring administration of the estate of his brother. On January 1, 1942, an administrator was appointed and notice of his appointment and to creditors was first published on January 8th following. The administrator immediately proceeded to take possession of all property referred to and exercised dominion over it thereafter on all dates herein mentioned. Prior to that time appellee had filed an answer to the petition seeking the appointment wherein he alleged the estate of his brother was really one of partnership in which he had a half interest and asked that whoever was designated to serve in such capacity be appointed to receive from him as surviving partner, after he had closed the affairs of the partnership, all property which actually belonged to the estate. However, as heretofore indicated and as will subsequently be disclosed, he failed to consummate the action which it is apparent was then contemplated by him. This pleading contained none of the requisites of a formal claim and it is not contended that by it a demand to a portion of the estate was exhibited or established in the manner provided by the probate code. Thereafter appellee made no effort to exhibit any demand against the estate based on the claim to which we have referred until December 31, 1943, the day on which the administrator's petition for final settlement came on for hearing in probate court. On that date he filed an answer wherein he alleged he was the sole owner of the dance hall and that by reason of the fact he was a partner of the deceased during his lifetime, he was the owner of and entitled to a one-half interest in all the personalty and cash in the estate and sought distribution of it to him by order of the court. In such answer he made no claim to an interest in the real property. David Bourke, hereinafter referred to as appellant, immediately filed an answer to the claims as made by appellee in his pleading. He denied existence of the partnership and among other things alleged that the claims set forth therein were barred by the nonclaim statute of the probate code. On this issue and others, which are not important for our purposes, the probate court on January 18, 1944, found the claims set forth in appellee's answer should be denied and rendered judgment accordingly. John Bourke then appealed to district court by notice stating he appealed from the judgment denying his claim to one-half of the cash of the estate as a partner and his sole ownership in the dance hall all as set forth in his answer to the petition for final settlement.

On April 14, 1944, after the appeal had reached district court, and subsequent to rendition of the judgment in No. 36256 to which we shall presently refer, appellee filed two pleadings, one identified by him as his answer and entry of appearance as surviving partner and the other as his individual answer. In the one he alleged the administrator had in his hands the proceeds from the sale of personal property and was in possession of and managing and controlling the real estate, that all of such property, both real and personal, was the property and assets of the partnership estate resulting from the death of his brother and that he as surviving partner was not only entitled to have all the property turned over to him in that capacity but also to judgment decreeing him to be the owner of an undivided one-half interest therein. He also asked judgment declaring him to be the sole owner of the dance hall. In the other pleading he asserted that as surviving partner he was entitled to have delivered to him in that capacity all the property of the partnership, and further alleged that as an individual he was the owner of an undivided one-half interest in all such property real and personal, but consented to his taking possession thereof as surviving partner for purposes of administration. In this pleading he also claimed sole interest in the dance hall, requested that it be excepted from the assets in the estate of William Bourke and asked that it be adjudged to be his sole and individual property. In passing, although perhaps unnecessary to our decision, it should be noted that the first time appellee ever attempted to formally establish a demand to an interest in the real estate was in the pleadings filed by him in district court as just related. Within a few days appellant filed answer wherein he again denied existence of the partnership and once more asserted the claims made by appellee were barred by the nonclaim statute.

With issues thus joined the cause was tried in district court and judgment was rendered for appellee allowing his claims substantially as set forth in the two pleadings just referred to and directing the administrator to deliver, convey and assign to John Bourke as surviving partner all property, both real and personal, held by him as administrator of William Bourke, deceased. The appeal in No. 36257 is from such judgment.

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