Kyle v. Brownlee

• Decision Date: 11 March 1916
• Docket Number: 19,999
• Citation: 97 Kan. 517,155 P. 962
• Parties: NELLIE MAY BARNES and ELIZABETH AMELIA KYLE, Appellants, v. MARTIN B. BROWNLEE et al., Appellees
• Court: Kansas Supreme Court

155 P. 962

97 Kan. 517

NELLIE MAY BARNES and ELIZABETH AMELIA KYLE, Appellants, v. MARTIN B. BROWNLEE et al., Appellees

No. 19,999

Supreme Court of Kansas

March 11, 1916

Decided, January, 1916.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL--Foreign Judgment Admitting Will to Probate--When Conclusive against Collateral Attack. In a proceeding to establish and probate a will in another state the judgment recited that jurisdiction had been obtained by the service of a citation and notice upon the parties therein "in the manner and for the length of time required by law." Held, that the finding and adjudication is conclusive evidence that notice was duly given and jurisdiction acquired in the case as against a collateral attack.

2. WILL -- Destroyed by Fire -- Execution and Contents Proven -- Admitted to Probate in Foreign Court--Entitled to Full Faith and Credit. In the proceeding to establish and probate the will which had been destroyed by a fire that had caused the death of the testatrix, it was found that the will so accidentally destroyed had been duly executed and had never been revoked. The conditions of the will were found and declared; the names and residences of the heirs were stated; the reason why the original will could not be produced was recited; and the will proven was admitted to probate. Held, that the adjudication so made stands as evidence of the will of the testatrix and the disposition that she made of her property, and that an authenticated copy of the judgment establishing and declaring the provisions of the will is entitled to be admitted to record in the probate court of any county of this state in which property of the estate may be situated.

J. B. Wilson, B. V. Pardee, and W. E. Emick, all of Lawrence, for the appellants.

J. H. Mitchell, and S.D. Bishop, both of Lawrence, for the appellees.

OPINION

JOHNSTON, C. J.:

This action was brought by Nellie May Barnes and Elizabeth Amelia Kyle to recover for each a one-eighth interest in a quarter section of land in Douglas county; also for a partition of the tract and for certain rents and profits. The questions involved were determined on a demurrer to the petition, and also upon the files and records in a proceeding in a Texas court probating the will of Mary H. Pritchett, which the parties agreed should be considered by the trial court in making its decision.

It appears that Mrs. Pritchett died April 12, 1899, as the result of burns received when the family home in Jasper county, Texas, was burned the preceding day. She left surviving her, her husband, Reuben Pritchett, and four children, Raymond, Albert E., Nellie May, and Elizabeth Amelia--the last two of the children having married and are the plaintiffs in this action. The family formerly lived in Kansas, and the will in controversy was executed by her in Kansas on November 10, 1889. In the will, according to the testimony in the probate proceedings, she gave all her property, real and personal, to her husband, and provided that any property remaining at his death should pass in equal proportions to their children. It was also provided that the husband should act as the sole executor without bond, and that no proceedings in court should be had except to probate the will and make an inventory of the property. The will was duly signed by her and by subscribing witnesses whose names were not remembered when it was probated. Subsequently the family removed to Jasper county, Texas, and the will was deposited with the judge of the county court of the county for safe-keeping. On the day the home was burned, her son Albert was sent by her to obtain the will, and he told the judge that his mother desired to examine it. It was delivered to him, and on that day it was examined by the testatrix and the members of the family and its terms and provisions were considered and discussed by them. Two or three hours later the residence caught fire and Mrs. Pritchett was severely burned while trying to save valuable papers which included certain deeds, her husband's will giving his property to her, and the will in question. She died from the effects of the burning, on the following day. Proceedings were subsequently taken in the county court of Jasper county, Texas, to probate the will, and the judgment there entered recites that the application for probate was in due form, that the citation had been served in the manner and for the length of time required by law, that due proof had been made of the death of Mrs. Pritchett, that the will had been duly executed by her when she was of sound mind, and that it had never been revoked. The court, upon proof offered, found and adjudged what the contents and provisions of the will were, reciting that it could not be produced in court for the reason that it had been burned in the fire which caused the death of the testatrix. The judgment admitting the will to probate provided also for the appointment of Reuben Pritchett as executor without bond in accordance with the request made in the will and directed him to file an inventory of the property of the estate. On November 30, 1900, the will so probated was admitted to record in the probate court of Douglas county, Kansas, and on April 2, 1902, the executor conveyed the land to Martin B. Brownlee, one of the defendants herein. It is alleged by the plaintiffs that Brownlee had actual and constructive notice of the condition of the title to the land at the time of its purchase. On consideration of the averments of the petition and the files and records of the Texas court submitted at the same time, the court sustained the demurrer to plaintiffs' petition holding that the transfer of the land to the defendant was effective and valid.

The first contention is that the judgment of the Texas court is void, it being alleged in the petition that the citation or notice of the probate proceedings was not served upon the plaintiffs. The statutes of Texas provided that such a citation shall be served in a particular way and for a certain length of time. The judgment rendered by that court recites that it appeared "that said application is in due form, and that service of citation has been served and returned in the manner and for the length of time required by law." The action brought by the plaintiffs is a collateral attack on the Texas judgment. The facts essential to the jurisdiction of the court to render the judgment were found to exist and that adjudication is not open to collateral attack. As the jurisdiction of the court depended on due service of a citation, the fact that jurisdiction was exercised implies a finding that legal notice was given. ( In re Wallace, 75 Kan. 432, 89 P. 687.) In this case there is an express finding in general terms that notice was given and that it was legally sufficient as to manner and time, and this judicial determination must stand as...