Martin v. Battey

Decision Date06 July 1912
Docket Number17,701
Citation87 Kan. 582,125 P. 88
PartiesFRANK L. MARTIN et al., Appellants, v. GALEN S. BATTEY et al., Appellees
CourtKansas Supreme Court

Decided July, 1912.

Appeal from Jewell district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARTITION--Land in Another County--Minors--Judgment--Jurisdiction. An action which had for its purpose the determination of the interests of the contending parties in several tracts of land and the partition of the same among them is local in character and must be brought in the county in which the land is located and where a plaintiff brought an action in a county where one of the tracts is located and in which some of the defendants had an interest, and where he undertook to bring into the action infants who owned land in a county remote from the one in which the action was brought but who had no interest in the land situated in the latter county, there was no jurisdiction of the subject matter of the action so far as it affected the land of the infant defendants, and no consent of theirs could give jurisdiction to the court of these issues or validity to the judgment based thereon.

2. PARTITION--Guardian ad Litem--Service. In such a case the court has no authority to appoint a guardian ad litem for the infant defendants nor can a guardian ad litem be appointed until service has been obtained upon the infants and jurisdiction over them acquired as the code directs.

3. WILLS--Election in Illinois--Effectual in Kansas. A wife domiciled in Illinois died there owning lands in that state and in Kansas. She left a will giving her husband a life estate in all of her property, after which it is to go to the other heirs in designated proportions. The will was probated in Illinois and an authenticated copy of it was admitted to record and probate in this state. In Illinois the surviving husband determined to take under the will and he entered into the possession of the property devised and accepted and enjoyed the provisions made for him in the will. Held, that he elected to take under the will, and having done so in that state it is effectual in Kansas, as he could not elect to take under the will in Illinois and under the law in Kansas.

Frank L. Martin, and F. F. Prigg, both of Hutchinson, and R. C. Postlethwaite, of Jewell City, for the appellants.

Frank A. Lutz, and A. E. Jordan, both of Beloit, and R. W. Turner, of Mankato, for the appellees.

OPINION

JOHNSTON, C. J.:

This was an action by the appellants, Frank L. Martin and Florence L. Sawyer, to quiet their title to a half-section of land situated in Jewell county. They alleged that they held the legal title in fee simple and that Galen S. Battey and Galen S. Battey, jr., a minor, claimed some interest in the land and had represented to others that they had an interest in the land adverse to appellants, thus slandering the title and preventing appellants from making a sale of the land, but that appellees' claim of title was illegally made and constituted a cloud and incumbrance on the land, and appellants therefore asked that their title be quieted.

Shortly after the original petition was filed it was amended by adding Marjorie Battey White, Charles Wheaton Battey, Walter Sibley Battey and Galen Bradford Battey as parties defendant and asking the quieting of the title as against the adverse claims asserted by the new parties. In an answer and cross-petition of the defendants they alleged that they were the owners of the property and had acquired it through the will of their grandmother, Pauline A. Battey, subject to a term estate for the use of Clara Ellen Battey so long as she should remain the wife of Galen S. Battey, the son of the testatrix. It was alleged that the will was duly admitted to probate by the county court of Bureau county, Illinois, where the testatrix resided at the time of her death, and that the will so probated had been duly admitted to record and probate in the probate court of Jewell county and that letters testamentary were duly issued by that court.

The appellants for answer to the cross-petition pleaded a judgment of the district court of Reno county, Kansas, rendered April 9, 1902, in favor of Losada L. Battey, wherein he was plaintiff and all the appellants were defendants except Galen Bradford Battey, who was born after the rendition of the judgment, and they alleged that Losada L. Battey had since that time conveyed the land to appellants. The reply to this answer was that the court was without jurisdiction to render the Reno county judgment. On the issues formed a trial was had and the court made elaborate findings of fact and concluded that the title to the land was in the appellees, subject to the term estate of Clara Ellen Battey, and that this estate had passed and belonged to appellants.

It appears that the land involved here, as well as other tracts, was the property of Pauline A. Battey prior to and at the time of her death on July 11, 1897. The home of the family was in Bureau county, Illinois, and she left as survivors her husband, Owen W. Battey, and her two sons, Losada L. Battey and Galen S. Battey, who were her only heirs at law. A few weeks before her death she executed a will, in which her husband was named as executor, and which was duly probated in Bureau county, Illinois. Shortly after it was probated there an authenticated copy of the will and of the probate of the Illinois court was admitted to record in the probate court of Jewell county and an executor appointed. In this will she gave a life estate in all of her property to her husband, and she gave Clara Ellen Battey, the second wife of her son Galen S. Battey, a term estate in the land in controversy, as well as in other land, and the remainder in fee simple to the children of Galen S. Battey. When Pauline A. Battey died Galen S. Battey had one child, called Marjorie, born of his first marriage. He was then living with his second wife, Clara Ellen Battey. Of the second marriage Walker Sibley Battey was born July 22, 1897, Charles Wheaton Battey on February 7, 1899, and Galen Bradford Battey on May 22, 1903. In the will Losada L. Battey was given the use of real estate in Illinois and Kansas during his life, after which it was to pass to his children, if he had any. Authority was given to the executors to sell this land and reinvest the proceeds of it in other property for his use and benefit, if it was deemed profitable to do so. Owen W. Battey, the husband of the testatrix, qualified and acted as one of the executors of the will, and after taking legal advice as to his rights as husband of the testatrix determined to take under the will, and he entered into possession of the property the use of which was devised to him. He never made a formal renunciation of his rights under the will. About a year and a half after the death of his wife Owen W. Battey died. A few months after the death of Owen W. Battey Losada L. Battey instituted an action in the Illinois court to contest the will of his mother, and after the issues were made up and the case was ready for trial he dismissed it. Prior to that time he had taken possession of the property the use of which was given to him by the will, and he also received the rents and profits derived from it.

While the action to contest the will was still pending, and on February 17, 1900, he brought an action in Reno county, Kansas, naming Galen S. Battey and Clara Ellen Battey, his wife, and Marjorie Battey as defendants. He alleged that he was the owner of an undivided half of a tract of land in Reno county and of several tracts in Jewell county, and he asked for a partition of the same. The summons was served on Galen S. Battey and his wife in Mitchell county, but his daughter, Majorie, who resided in Illinois, was not served. Galen S. Battey and his wife answered setting up the will and the proceedings under it, alleging that Clara Ellen Battey was in the exclusive possession of the land under the will as a term tenant, that Losada L. Battey had been given a life interest in certain lands under the will and that he had accepted the conditions of the will and entered into the use of the property so given to him, and that he had no interest of any kind in the land in Jewell county. On July 19, 1900, an amended petition was filed in that action, in which Charles Wheaton Battey and Walker Sibley Battey, the other children of Galen S. Battey then living, were named as defendants, and in it he described an additional tract of land in Jewell county, claiming to own a half-interest in it and alleging that defendants were in possession and receiving the rents and profits of it. Afterwards an affidavit was filed for service by publication on Marjorie Battey in which it was stated that the action was brought to determine the title to real estate and for a partition of the same. A summons against the infant boys was then sent to Mitchell county and a return made that service had been personally made upon them. The court appointed an attorney as guardian ad litem for the three minor defendants, who filed an answer which was a general denial and which invoked the protection of the court because of the tender years of these infant defendants.

Afterwards and on October 11, 1900, a second amended petition was filed, in which the lands in Jewell county as well as in Reno county were described, and he alleged that he owned a half interest in them; that the defendants owned the other half interest but the exact interest of each he did not know; that he was entitled to the immediate possession of his one-half but that they had wrongfully kept him out of the possession, and he stated that the value of the possession was $ 2000 per year from January 1, 1898, and defendants were...

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