Nickel v. Vogel

• Decision Date: 09 November 1907
• Docket Number: 15,189
• Citation: 92 P. 1105,76 Kan. 625
• Parties: RICHARD E. NICKEL et ux. v. NICHOLAS VOGEL, as Administrator, etc
• Court: Kansas Supreme Court

92 P. 1105

76 Kan. 625

RICHARD E. NICKEL et ux. v. NICHOLAS VOGEL, as Administrator, etc

No. 15,189

Supreme Court of Kansas

November 9, 1907

Decided July, 1907.

Error from Atchison district court; BENJAMIN F. HUDSON, judge.

STATEMENT.

ON June 25, 1904, the defendant in error filed a bill of particulars in the city court of Atchison against the plaintiffs in error which reads:

"The plaintiff, as such administrator, for his cause of action states:

"(1) That on the 18th day of December, 1895, at Atchison, Kan the defendants made, executed, and delivered to Minnie Duehren, who is designated in the note herein sued on as Minnie Duehren, their promissory note, a copy of which is hereto annexed, marked 'Exhibit A,' and made a part of this bill of particulars; that the words 'Leavenworth Kan.,' 'days,' 'First National Bank, of Leavenworth, Kan.,' were stricken out, and the words 'Acton, Cal.,' and 'her order' added and inserted by the defendant, Richard E. Nickel, prior to the execution and delivery of the said note to the said payee Minnie Duehren.

"(2) That the defendants, or either of them, have not paid the said note nor any part thereof, and that there is due from the defendants to the plaintiff, as administrator, one hundred and eighty-nine dollars, with interest thereon at the rate of eight per cent. per annum from June 18, 1896; that the plaintiff hereby remits the excess over and above three hundred dollars on this claim, and makes demand for three hundred dollars only on account of such principal and interest; that the plaintiff has demanded payment from the defendants, who refuse to make payment.

"(3) That at the time the cause of action upon the note herein sued on accrued, both the defendants were out of the state of Kansas; that both the defendants came into the state of Kansas after the said cause of action accrued, remained about two weeks in this state, and at the end of said two weeks both defendants again departed from this state, and have been continuously absent from the state of Kansas until May or June, 1904.

"(4) That on the day of September, 1897, at Atchison, Kan., the said Minnie Duehren intermarried with Nicholas Vogel, who is the plaintiff administrator in this action, which marriage relation continued until the time of her death.

"(5) That on the 29th day of July, 1898, at Atchison, Kan., the said Minnie Vogel, formerly Duehren, died intestate, and that at all the times herein stated she was a resident of Kansas.

"(6) That on the 7th day of May, 1904, letters of administration on the estate of the said Minnie Vogel were issued by the probate court of Atchison county, Kansas, to the plaintiff.

"(7) That the plaintiff thereupon duly qualified as such administrator and entered upon the discharge of the duties of his office, and that said letters of administration have not been revoked.

"Wherefore the plaintiff prays for judgment against the defendants for the sum of one hundred eighty-nine dollars, with interest thereon from June 18, 1896, not in excess of three hundred dollars, on account of such principal and interest, and for costs of this suit."

"EXHIBIT A.

"$ 189. ACTON, CAL., December 18, 1895.

"Six months after date we promise to pay to the order of Minnie Duehren one hundred eighty-nine dollars at her order, value received, with interest at 8 per cent. per annum from maturity until paid.

R. E. NICKEL, ANNA C. NICKEL."

To this a demurrer was filed which reads:

"Now come the defendants, each and both, and demur to plaintiff's bill of particulars filed herein, for the reasons following, to wit:

"(1) Because said petition shows on its face that the pretended cause of action attempted to be stated therein is barred by the statute of limitations, and that no cause of action has accrued against defendants in favor of plaintiff within five years next prior to the commencement of this action.

"(2) Because the said petition shows on its face that the plaintiff has no legal capacity to sue or maintain said action.

"(3) Because the said petition shows on its face that the plaintiff is not the real party in interest.

"(4) Because the said petition does not state well-pleaded facts sufficient to constitute a cause of action against the defendants."

The demurrer was sustained by the city court, but upon appeal it was overruled in the district court, and this ruling is assigned as error.

Demurrer overruled and ruling affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ADMINISTRATORS--Appointment--Jurisdiction of Probate Court. The jurisdiction of a probate court in this state to appoint an administrator does not depend upon the existence of debts due from the estate, nor upon the existence of assets which can be legally applied to the payment of such debts.

2. LIMITATION OF ACTIONS--Conflict of Laws. The statute of limitations of this state applies exclusively in all actions pending in the courts of this state, except as otherwise provided by law.

3. LIMITATION OF ACTIONS--Action against Non-residents. In an action on a promissory note the bill of particulars alleged in substance that the note was made, executed and delivered at Atchison, Kan. The note reads:

"$ 189. ACTON, CAL., December 18, 1895.

"Six months after date we promise to pay to the order of Minnie Duehren one hundred eighty-nine dollars at her order, value received, with interest at 8 per cent. per annum from maturity until paid.

R. E. NICKEL, ANNA C. NICKEL."

It was further alleged that the payee resided in Kansas at all times prior to her death, which occurred July 29, 1898. After receiving the note she married Nicholas Vogel, the plaintiff, who on May 7, 1904, was appointed administrator of her estate. The makers of the note were absent from the state of Kansas all the time after its delivery to the payee except for the period of about two weeks prior to the commencement of the action, which was begun June 25, 1904, by Nicholas Vogel, as administrator. Held, that a demurrer to the pleading was properly overruled.

Henry Elliston, for plaintiffs in error.

Hugo Orlopp, for defendant in error.

OPINION

GRAVES, J.:

It is claimed by the plaintiffs in error that under the statutes relating to executors and administrators an administrator can be appointed only when the intestate leaves property which is liable for the payment of existing and enforceable debts due from the estate; otherwise stated, that the law provides administrators solely for the purpose of enabling creditors to collect their claims against the estates of intestates who leave property which may be legally taken for that purpose. When all the debts due from the estate are barred by the statute of limitations, or the property left is exempt, then, according to this contention, no jurisdiction exists in the probate court to appoint an administrator.

At the time the administrator in this case was appointed more than six years had elapsed since the death of his intestate, and more than five years had elapsed after the creditors, if any, might have obtained the appointment of an administrator; and, therefore, it is urged, all claims against the estate were necessarily barred by the statute of limitations, which made the appointment void.

In support of their position the plaintiffs in error cite several sections of the statutes relating to executors and administrators and descents and distributions, which it is urged, when construed together, make a scheme for the care of estates which excludes administrators for any purpose other than as stated. There is nothing in these sections which directly supports this claim. The contention depends entirely upon an inference drawn from the language of a few sections of chapter 37 of the General Statutes of 1901, enough of which to make the position clear is here given:

"Every executor or administrator shall, within sixty days after his appointment, or sooner if so ordered by the probate judge, make and return upon oath into court a true inventory of all the goods, chattels, moneys, rights and credits of the deceased which are by law to be administered, and which shall have come into his possession or knowledge, and also of all the real estate of the deceased." (Gen. Stat. 1901, § 2844.)

"Upon proper proof being made by an executor or administrator to the probate court, that any claim, debt or demand whatsoever belonging to the estate in his hands to be administered and accruing in the lifetime of the deceased, represented by such executor or administrator, cannot be collected," etc. (Gen. Stat. 1901, § 2868.)

"The executor or administrator shall, within three months after the date of his bond, sell the whole of the personal property belonging to the estate, which is liable to the payment of debts, and is assets in his hands to be administered, except the following: First, such as may be set apart to the widow and children, as exempt from the payment of debts. Second, such property as is specifically bequeathed shall not be sold until the residue of the personal estate has been sold, and is found by the executor or administrator to be insufficient for the payment of the debts of the estate. Third, the executor or administrator may defer the sale of the emblements or annual crops raised by labor, which were not severed from the land of deceased at the time of his death, beyond the three months herein prescribed for the sale of the assets, and the same may be sold before or after they are severed from the land, by the executor or administrator, with the approval of the probate court, and in the mode prescribed for the sale of other goods and chattels." (Gen. Stat. 1901, § 2874.)

"Every executor or administrator shall be chargeable with the amount of the sale bill; and...