Kininmonth v. Carson

• Decision Date: 08 May 1943
• Docket Number: 35859.
• Parties: KININMONTH v. CARSON et al.
• Court: Kansas Supreme Court

137 P.2d 173

156 Kan. 808

KININMONTH v. CARSON et al.

No. 35859.

Supreme Court of Kansas

May 8, 1943

Rehearing Denied June 19, 1943.

Syllabus by the Court.

Where questions presented on appeal required consideration of testimony and proceedings below, it was appellants' duty to cause transcript of such testimony and proceedings to be made, certified and filed. Gen.St.1935, 60-3311.

Where appellants failed to file transcript, reviewing court would not review any question which required examination of evidence. Gen.St.1935, 60-3311.

Where probate court ordered administrator to take possession of decedent's realty, and other parties claimed title to and right to possession of realty in administrator's possession, it was administrator's duty to bring action to quiet title, and such action could be brought in district court, as against contention that probate court had exclusive jurisdiction. Gen.St.Supp. 1941, 59-301, subds. 3, 5, 11, 12 59-1401.

Grantees who alleged, in suit for determination of rights under grantor's will, that will was duly admitted to probate could not deny such fact in administrator's subsequent suit to quiet title and to set aside decedent's conveyances.

Where testatrix died March 4, 1938, her will was filed June 6 1939, and was probated October 6, 1939, and it was not shown that will was withheld from probate by anyone who had duty to offer it, validity of appointment of administrator with will annexed could not be disputed in administrator's suit to quiet title on ground that application for probate had not been made within one year after testatrix' death. Gen.St.1935, 22-208, 22-213, 22-233; Gen.St.Supp.1941 59-617, 59-618.

1. In an appeal to the supreme court wherein the questions presented require consideration of the testimony and proceedings in the district court, it is the duty of the appellant to cause a transcript of such testimony and proceedings to be made, and when made and certified by the official stenographer, to be filed with the clerk of the district court.

2. When the appellant has failed to file the transcript, to which reference is made in the foregoing paragraph of this syllabus, this court will not review any action of the trial court that requires an examination of the evidence.

3. Where the probate court ordered the administrator of an estate to take possession of all the real property owned by decedent and certain parties were asserting that they had a right to possession and title of the real property, it was the duty of the administrator to bring an action to quiet title and the proper forum in which to bring it was the district court.

4. The testatrix died March 4, 1938. Petitions for probate of her will were filed June 6, 1939, and September 13, 1939. Her will was probated October 6, 1939. There is no evidence that this will was withheld from probate-- Held that the administrator appointed pursuant to the will was duly appointed and had authority to bring an action to quiet title.

Appeal from District Court, Cowley County; George J. Benson, Judge.

Action by A. S. Kininmonth, administrator with will annexed of the estate of Sarah C. Pennington, against Martha J. Carson and another to quiet title to realty and to set aside certain conveyances. From a judgment for plaintiff, defendants appeal.

W. E Broadie and C. H. Qujer, both of Winfield, for appellants.

J. B. McKay, of El Dorado, and Harry O. Janicke, of Winfield (Roy Wasson, of Wichita, and O. B. Scott, of Winfield, on the brief), for appellees.

SMITH Justice.

This was an action by the administrator of an estate to quiet title to the real estate and to set aside certain conveyances of interests in it. Judgment was for the plaintiff. Defendants appeal.

The action arose out of the business affairs of Sarah Pennington and Amanda Pennington, two elderly spinsters, who spent their lives together on a farm in Cowley county. The petition alleged the appointment of the plaintiff as the administrator of the estate of Sarah C. Pennington; that during her lifetime she owned the real estate involved, in fee simple; that plaintiff was in actual possession of the real estate; that the defendant, Martha J. Carson, claimed some title to it by virtue of certain instruments; that the defendant, Henry D. Pennington, claims some title on account of certain instruments.

The petition then set out another group of defendants which was referred to as the heirs of one Anderson D. Pennington, who was a brother of Sarah. The petition then set out another group of defendants and alleged that they claimed title to the property by virtue of certain instruments and alleged that these defendants were the devisees and legatees or their successors in interest under the will of Amanda C. Pennington and the executors of this will. The petition then alleged that at all the times mentioned Sarah was an incompetent and insane person and that the grantees in the deeds and conveyances knew or should have known of her insanity and incompetency and that there was no consideration given for the purported conveyances and that they were wholly void and of no force and effect as against the plaintiff and the beneficiaries under the will of Sarah C. Pennington, deceased, and that these deeds, conveyances and claims constituted a cloud upon the title to the real estate described. The petition then alleged that defendant, W. E. Broadie, claimed to have some right in the real estate by virtue of a warranty deed wherein Henry D. Pennington was grantor and Broadie was grantee; that Broadie was not an innocent purchaser and should have known at the time of receiving the purported deed that Henry D. Pennington held no title; that Sarah was an incompetent person and that the conveyances were void. The petition next alleged that O. W. Torrance claimed to have some interest in the property, the exact nature of which plaintiff did not know but that the claim constituted a cloud upon the title of this plaintiff. The petition asked that the defendants, W. E. Broadie, Martha J. Carson, Henry Pennington, and O. W. Torrance be forever barred from having or claiming to have any interest in the real estate and asked that the two groups of defendants, which were referred to in the petition as heirs at law of Anderson D. Pennington and the devisees under the will of Amanda C. Pennington be forever barred from claiming to have any interest arising out of the purported conveyances and that the title of the plaintiff be quieted in the real estate and that he be adjudged to be the owner of the fee-simple title to it. The conveyances referred to in the petition were mineral assignments executed by Sarah C. Pennington on April 11, 1936, conveying to each of her brothers and sisters, Henry Pennington, Martha Carson, Andy D. Pennington and Amanda C. Pennington one-fortieth of the minerals in and under her lands in Sumner and Cowley counties and also deeds executed by Sarah C. Pennington September 16, 1936, conveying her land in Cowley county to two brothers and two sisters named and another deed conveying her land in Sumner county to the same parties. The petition was later amended to show that the plaintiff, A. S. Kininmonth, was on March 15, 1938, appointed administrator of her estate and that on the 6th day of October, 1939, an after-discovered will was admitted to probate and he was appointed administrator c.t.a. of Sarah's estate and by order of the probate court after due notice to all interested parties on May 6, 1938, was granted possession of the real estate involved in this action; that a copy of this order is attached to the petition. This order was signed by the probate judge on May 6, 1938. It directed the administrator to take possession of the real estate belonging to deceased, to lease the same, collect rent, keep in repair, pay taxes, hold the income not expended in taxes, repairs and insurance until the further order of the court. Rebecca Porter, who was one of the defendants, and O. W. Torrance, disclaimed any interest in the subject matter of the action and a qualified disclaimer was filed by W. E. Broadie. Myrel W. Green and Ada Beeman filed separate answers and cross petitions. In their answer they admitted all the statements contained in the petition and in their cross-petition they adopted the allegations of the amended petition and alleged that they were each residuary legatees under the will of Amanda C. Pennington, which was admitted to probate May 3, 1939, and alleged that the real estate involved was the property of Amanda C. Pennington by virtue of the will of Sarah C. Pennington, which was admitted to probate October 6, 1939. They prayed judgment be rendered as prayed for in the petition.

To the amended petition defendants, Roy H. Wasson and Myrel W. Green, executors of the estate of Amanda C. Pennington, filed similar pleadings except that in their cross-petition they alleged that they were the executors of Amanda's estate and that they were interested in the real estate involved because Amanda was the principal beneficiary under Sarah's will, dated January 1, 1910; that Amanda died in April, 1939, and Sarah died March 4, 1938, and that Sarah's will was admitted to probate October 6, 1939. These parties prayed that judgment be rendered as prayed for in the petition.

Another group of defendants filed an amended answer and cross-petition, in which they admitted the allegations of the petition to be true and adopted the same as their cross-petition and stated that they were not in possession of the real estate except through the plaintiff, pursuant to the order of May 6, 1938, which has been referred to, and alleged that they were legatees and devisees under the will of Amanda and made the allegations already referred to; that the...