Jardon v. Price

• Decision Date: 07 June 1947
• Docket Number: 36897.
• Parties: JARDON et al. v. PRICE et al.
• Court: Kansas Supreme Court

181 P.2d 469

163 Kan. 294

JARDON et al. v. PRICE et al.

No. 36897.

Supreme Court of Kansas

June 7, 1947

Appeal from District Court, Douglas County; Hugh Means, Judge.

Action by Theodie V. Jardon and others against Ray E. Price and others to determine the interest of plaintiffs and defendants acquired in certain lands to decedents to have the lands partitioned and to have set off against the interest of defendants a claim for money alleged to be due on two notes. From an order sustaining demurrer to the petition, the plaintiffs appeal.

Syllabus by the Court

1. Anyone having a claim against a decedent's estate whether it be for money or to determine a controversy concerning a distributive share in the estate, is obliged to have an administrator appointed within one year after decedent's death in order that the claim may be asserted within the time prescribed by the probate code.

2. A decree of descent under the provisions of G.S.1945 Supp 59-2250 does not create title but merely declares who has acquired the title of the decedent under the law of intestate succession. The function of the statute is not to determine claims or controversies affecting the distributive share which would otherwise pass under the law of intestate succession.

3. Probate courts have exclusive original jurisdiction over final settlement and distribution of decedent estates and are required to determine the heirs, devisees and legatees entitled thereto, to describe the property and to state the proportion or part thereof to which each is entitled.

4. It is not the purpose of the proviso in G.S.1945 Supp. 59-2250, pertaining to district courts, to deprive probate courts of their exclusive original jurisdiction over matters mentioned in the last preceding paragraph.

John J Riling, of Lawrence (Clarence S. Hunt, of Long Beach, Calif., on the brief), for appellants.

George K. Melvin, of Lawrence (A. B. Mitchell, of Topeka, on the brief), for appellees.

WEDELL Justice.

This was an action in the district court to determine the interest plaintiffs and defendants acquired in certain lands from two decedents, to have the lands partitioned and also to have set off against the interest of defendants a claim for money alleged to be due on two notes.

The district court sustained a demurrer to the petition on the ground it lacked jurisdiction to allow the claim on the notes. From that ruling plaintiffs appeal.

The material portions of the petition, in substance, alleged: M. J. Jardon died testate in Douglas county August 17, 1941, and at such time was the owner of the described tracts of land involved, situated in Douglas county; a petition to probate his will and for issuance of letters testamentary to his widow, named as executrix in the will, was refused by the probate court for the reason the petition was filed more than one year after Jardon's death; no appeal was perfected from that judgment; the surviving heirs at law of Jardon were the plaintiffs (Jardon's widow and four of their adult children) and a daughter, Claudia Violet Price, now deceased; Claudia Violet Price died intestate March 27, 1943, a resident of Douglas county, and her surviving heirs at law (the defendants in this action) were Ray E. Price, Claudia's husband, and their four children, all of whom were adults except one.

With respect to the notes the petition alleged:

'That upon the 28th day of November, 1921, the above named defendant, Ray E. Price and his wife, Violet Price, who is one and the same person as Claudia Violet Price, hereinbefore referred to, made, executed and delivered to The Peoples State Bank, Baldwin, Kansas, their promissory note in the sum of Two Thousand Fifty-two Dollars ($2,052.00), a true and correct copy of said note is hereto attached, marked Exhibit 'A' and made a part hereof. That said note draws interest at the rate of eight percent (8%) per annum from date thereof. That the title to said note was transferred by said bank by delivery and upon payment therefor of the sum of Two Thousand One Hundred Eighty-five Dollars and Fifteen Cents ($2,185.15) by M. J. Jardon upon the 28th day of November, 1922. That M. J. Jardon, at the time of his death, was the owner of said note, which note together with the interest thereon has not been paid, or any part thereof.

'That upon the 22nd day of September, 1923, the above named defendant, Ray E. Price, together with his wife, Violet Price, herein referred to, made, executed and delivered to M. J. Jardon their promissory note in the sum of Three Thousand Dollars ($3,000.00), drawing interest at the rate of five percent (5%) per annum from date. That M. J. Jardon, herein referred to, was the owner of said note at the time of his death, which has not been paid or any part thereof, and the interest thereon has not been paid. That a true and correct copy of said note is hereto attached, marked Exhibit 'B' and made a part hereof.

'That the amounts evidenced by said notes, together with the interest thereon, according to the terms thereof, are due the estate of M. J. Jardon, now deceased. That there has been no administration of the estate of M. J. Jardon, deceased.'

The petition further, in substance, alleged: Plaintiffs and defendants inherited the interest in the lands held by M. J. Jardon at his death; defendants took their interest therein by descent from Claudia Violet Price, subject to the payment of the notes which were the property of M. J. Jardon.

The question presented is whether the district court had original jurisdiction to determine the claim represented by the notes and, if valid, to deduct it from the distributive share in the lands which appellees acquired under the law of interstate succession.

The petition admits: The lands and notes were the property of M J. Jardon at the time of his death; that no administration has been had on his estate and consequently that the indebtedness represented by the notes has not been collected and brought into his estate for distribution among his heirs; that the interest in the lands inherited by Claudia V. Price from her father, M. J. Jardon, was subject to a deduction of the amount due on the notes; that the interest inherited...