Meenen v. Meenen

• Decision Date: 09 March 1957
• Docket Number: No. 40406,40406
• Citation: Meenen v. Meenen, 180 Kan. 779, 308 P.2d 158 (Kan. 1957)
• Parties: Allan Roger MEENEN, Appellant, v. Ludolph MEENEN, a/k/a L. E. Meenen, Fritz Meenen, a/k/a F. H. Meenen, Bertha Meenen Gerriets, Henry J. Meenen, Friedrick Meenen, Henrietta Morey, Appellees.
• Court: Kansas Supreme Court

Page 158

308 P.2d 158

180 Kan. 779

Allan Roger MEENEN, Appellant, v. Ludolph MEENEN, a/k/a L. E. Meenen, Fritz Meenen, a/k/a F H. Meenen, Bertha Meenen Gerriets, Henry J Meenen, Friedrick Meenen, Henrietta Morey, Appellees.

No. 40406.

Supreme Court of Kansas.

March 9, 1957.

Syllabus by the Court.

1. Where a grandson inherits a fractional interest in land from his grandmother, under G.S.1935, 22-118, it is held that his inherited share is subject to an equitable lien for the debt of his predeceased father to the grandmother.

2. The right of a decedent's estate to have the unpaid debt of an heir, normally referred to as an advancement, considered a part of the estate, as being already in the hands of such heir, sometimes called the right of retainer, sometimes the right of set-off, and sometimes the right of an equitable lien, is extended and applied to the debt of a child's predeceased father to the grandmother as above described.

3. Where the legislature makes a change in the phraseology of a statute or deletes a phrase of the original act, it raises a presumption that the legislature also intended a change in the meaning.

4. A new statutory enactment by the legislature does not signify an intention to change an existing non-statutory law which is identical with the statutory enactment.

5. Where the journal entry of an order in the lower court decrees partition of real property and expressly reserves matters relating to the accounting and distribution of funds paid into court on the partition, and other funds to be accounted for and distributed as alleged in the second cause of action, so as to conserve the rights of the parties, the defendants (appellees) are not barred from claiming that the indebtedness as above described should be taken from the plaintiff's distributive share and by res adjudicata.

C. Vincent Jones, Clay Center, Wayne W. Ryan, Clay Center, on the brief, for appellant.

W. M. Beall, Clay Center, for appellees.

SCHROEDER, Justice.

This is the second appearance of this action in this court. See Meenen v. Meenen, 178 Kan. 510, 289 P.2d 766. The appeal is from a judgment denying petitioner's claim relative to an accounting in his second cause of action, and from all other adverse rulings.

It goes without saying that the issues now to be reviewed are dependent upon later events and proceedings. Nevertheless, since this cause was determined by the court below on an agreed statement of facts in substantial accord with the facts stated by the answer of the defendants, except as to the legal effect thereof, it is particularly important that readers of this opinion understand the facts, circumstances and conditions governing our decision in the first appeal where it was determined that the statute of nonclaim had no bearing on the case. They are clearly and succinctly set forth in the opinion of that decision where they can be found by reference when required for purposes essential to the disposition of this appeal. For that reason they will not be here detailed or repeated.

The plaintiff, appellant herein, for his first cause of action alleged that the plaintiff was the owner by inheritance from Jahanna Meenen of a 3/15 interest in the estate and asked that it be so partitioned. And the defendants, appellees herein, in their answer admitted that the plaintiff did own such interest and by reference adopted the allegations of the first cause of action as a part of their answer. Thereafter, on February 2, 1955, the court found and decreed that the plaintiff was the owner of a 3/15 interest in the land and ordered it partitioned after plaintiff had announced that he was appealing the order overruling the demurrer. Meenen v. Meenen, supra. There being no objection the Journal Entry made the follow reservation in the finding of the court:

'* * * the court finds that, the court should and does hereby reserve and continue for further hearing, at a time to be agreed upon by the parties or fixed by the court, all matters relating to accounting, and distribution, and does order the cause to proceed as to plaintiff's first cause of action, for partition.'

It also made the following reservation in the decree:

'* * * And that whether partitioned or sold the court reserves the right to make such appropriate orders as may be necessary to conserve the rights of the parties as shall appear upon the accounting herein.'

The foregoing decree had long been final before the plaintiff's amended and supplemental reply was filed. The partition following the decree was completed--the land was sold to Ludolph Meenen by election and the money paid into court whereupon a deed was issued to him.

Thereafter, on April 4, 1956, the court tried the case as to the accounting upon the admission of the pleadings, the agreed statements of facts, the admissions of the defendants and the evidence, and after having taken the ruling under advisement made special findings of fact and conclusions of law on May 2, 1956, and rendered judgment against plaintiff and overruled plaintiff's motion for a new trial.

The plaintiff at every stage of the case and at every opportunity, by motion to determine issues of law in advance of trial, by requested findings of fact and law, by motion for additional and substituted findings of fact and law, by request for the court to state the grounds of his decision, and by motion for a new trial, asked that the questions herein presented be determined in favor of the plaintiff; and each and all of the same were uniformly determined against him.

The Findings of Fact and Conclusions of Law necessary for the disposition of this appeal are hereinafter quoted:

Findings of Fact.

'The Court finds the facts to be as admitted by the pleadings herein and as stated in the Agreed Statement of Facts on file herein and as hereinafter stated.

* * *

* * *

'2. That at the meeting in Joe Haynes' office in Clifton, Kansas, on June 7, 1954 when plaintiff, his mother, F. H. Meenen and Joe Haynes were present, and plaintiff accepted the sum of $20000.00 by way of partial distribution of his distributive share in Johanna Meenen's estate and consented to the endorsement of the sum of $4,000.00 on the note, Joe Haynes stated that although he was no lawyer he was of the opinion that under the laws of Kansas the note of $8,750.00 given by plaintiff's father to Johanna Meenen was an offset against plaintiff's distributive share in Johanna Meenen's estate and should be deducted therefrom. The Court further finds that even though plaintiff may have accepted and relied upon such opinion and representations of Joe Haynes in this regard, he was not misled or deceived thereby.'

Conclusions of Law.

'1. That the original accounting of F. H. Meenen filed herein, as modified, corrected and supplemented by Paragraph 1 of said Agreed Statement of Facts, is approved and confirmed.

* * *

* * *

'3. That the oral agreement set forth in Paragraph 8 of the Agreed Statement of Facts is valid and binding in all respects. [Referred to in Finding of Fact No. 2].

'4. That plaintiff inherits and takes the same interest in Johanna Meenen's estate and in the accumulated rents and profits that his father, Peter J. Meenen, would have taken had he outlived Johanna Meenen, and he takes it subject to the same conditions and equities that Peter J. Meenen would have taken.

'5. That plaintiff is legally and morally bound to suffer the amount due on said note to be deducted from his distributive share in said estate.

'6. That the amount of the indebtedness represented by said note of $8,750.00, less the credit of $4,000.00 thereon, constitutes an equitable lien upon plaintiff's distributive share in said estate.'

The appellees asked, by their lawsuit in behalf of the estate, to collect from the plaintiff $8,750 owed by the plaintiff's predeceased father to plaintiff's grandmother, $6,000 of which money was borrowed before the plaintiff was born, plaintiff being only eight years old when his predeceased father executed the note, and only ten years old when his father died. The essence of appellees' claim, that being the principal issue herein, is an attempt to take from the plaintiff 4/5 of $8,750 (the total sum of plaintiff's predeceased father's note less plaintiff's 3/15 interest therein in his grandmother's estate) from plaintiff's inherited share, to pay the debt of plaintiff's predeceased father and living mother. Stated more concisely, the principal question to be determined by this action is whether, when a grandson inherits a 3/15 interest in land from his grandmother, under G.S.1935, 22-118, his inherited share is subject to an equitable lien for the debt of his predeceased father to the grandmother.

The question on the facts before this court has never been presented since the statutory amendment of 1891. In a case where an heir himself is indebted to an intestate decedent from whom he inherits, the right of the decedent's estate to have the unpaid debt considered a part of the estate, as being already in the hands of such heir, is sometimes called the right of retainer, sometimes the right of set-off, and sometimes the right of an equitable lien. But what is meant is simply that where the heir himself owes the decedent, and has not paid him, he already has in his hands funds belonging to the estate, and such funds are considered a part of the mass of the estate, and credited against his distributive share.

The appellant concedes the above to be a correct statement of the law where the heir himself owes the intestate. This position of the appellant is fortified by his insistence in the lower court that the sum of $240 owed by Ludolph Meenen to Johanna Meenen, the intestate decedent herein, should be deducted from the distributive share of Ludolph Meenen, who is a son of Johanna Meenen.

The principal contention of the appellant is that the manner in which an heir inherits property is significant and is the criterion by which...