In re Hall's Estate

• Decision Date: 09 June 1945
• Docket Number: 36296.
• Citation: 160 Kan. 25,159 P.2d 408
• Parties: In re HALL'S ESTATE. v. STEPHENS COLLEGE. HALL et al.
• Court: Kansas Supreme Court

159 P.2d 408

160 Kan. 25

In re HALL'S ESTATE.

HALL et al. v. STEPHENS COLLEGE.

No. 36296.

Supreme Court of Kansas

June 9, 1945

Rehearing Denied July 13, 1945.

Appeal from District Court, Butler County, Division No. 2; George J Benson, Judge.

Proceeding in the matter of the estate of Mariam B. Hall, deceased. On application of Corwin G. Hall and others for redistribution of money paid to the county treasurer by the executor of the will of Mariam B. Hall, deceased, pursuant to an order of the probate court, wherein Stephens College, as judgment creditor of one of the heirs and legatees, intervened and objected to the redistribution. From a judgment of the district court dismissing judgment creditor's appeal from order of probate court directing a redistribution, the judgment creditor appeals.

Syllabus by the Court.

Where money is paid to a county treasurer pursuant to G.S.1935 22-932, or G.S.1943 Supp. 59-1508, it is held by the county treasurer pursuant to the terms of that statute.

W. H Coutts, Jr., of El Dorado, for appellant.

L. J Bond, of El Dorado, for appellees.

SMITH Justice.

This is an application for redistribution of money paid to the county treasurer by the executor of a will pursuant to an order of the probate court. A judgment creditor of one of the heirs and legatees intervened and objected to the redistribution. Judgment was entered ordering a redistribution. The appeal of the creditor to the district court was dismissed. It has appealed.

The matter arises out of the estate of Mariam B. Hall. When she died some notes given by her daughter, Jennie M. Long, were found among her effects. These notes were treated as assets of the estate and when final distribution was made the distributive share of Jennie M. Long was found to be $639.66.

This final settlement was made on October 25, 1937. Jennie M. Long refused to accept this amount. On December 9, 1937, the probate court on application of the executor found that Jennie M. Long had refused to accept her distributive share and that it should be paid to the county treasurer for the benefit of the common schools of that county. On the same day it was so paid.

On March 31, 1939, the executor of the estate of Mariam B. Hall applied to the probate court for an order that this money be distributed to the other heirs, next of kin and legatees of Mariam B. Hall. In this application the executor showed that he had been ordered to pay this amount to Jennie M. Long; that he had tendered it to her and she had refused it; that he had paid to to the county treasurer of Butler county on December 9, 1937, and that it had been held by the county treasurer since that time.

On June 1, 1943, Stephens College, the appellant in this case, asked the probate court for permission to intervene in the matter. In support of this application it pleaded that on March 10, 1943, it had filed its petition for intervention; that on the 26th of April, 1943, an execution against Jennie M. Long had been issued by the district court on a judgment obtained in a case in which it was plaintiff and Jennie M. Long was defendant and that on the same day it had filed an affidavit in garnishment, and garnishment summons had been issued and served on the county treasurer of the county and the county treasurer as an individual and upon the executor of the estate of Mariam B. Hall and other interested parties; that by the garnishment action certain funds were impounded in the hands of the garnishee defendants, for which they would have to account; that the final order of distribution was made on the 22nd of October, 1937, and on December 9, 1937, the executor had paid to the county treasurer $639.66, being the distributive share of Jennie M. Long in the estate of Mariam B. Hall; that under G.S.1935, 22-932, it was provided that money unclaimed by distributees should be held by the probate court for a space of one year after it was ordered distributed; that this fund had not remained in the hands of the executor for a year but only from October 22, 1937, until December 9, 1937, less than sixty days; that these funds were in the eyes of the law in the hands of Corwin G. Hall and therefore not in the hands of the county treasurer and the probate court was without jurisdiction of the subject matter of the action and was powerless to make an order distributing these funds or releasing a garnishment of the district court and that equity should not allow Corwin G. Hall to profit by the results of his misdeeds and that had he allowed the funds of Mrs. Long to remain in his hands for a period of one year the intervening petitioner would have caused a garnishment to be served upon him as executor.

On April 29, 1943, the court heard this matter; found that legal notice had been given; that the statements contained in the application for redistribution were true and that the application should be allowed. The court then ordered the distribution of $639.66 among the legatees in the will of Mariam B. Hall and found further that Stephens College, the intervenor, had no interest in the money and took nothing under its pleadings and the costs should be taxed against it. From this order the intervenor appealed. On appeal the district court found substantially as the probate court and entered judgment in favor of the parties who had asked for redistribution and ordered that the appeal of the intervenor, Stephens College, should be dismissed.

From that judgment the appeal is taken.

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