Oberst v. Mooney

• Decision Date: 07 May 1932
• Docket Number: 30576.
• Citation: 10 P.2d 846,135 Kan. 433
• Parties: OBERST v. MOONEY, Probate Judge, et al.
• Court: Kansas Supreme Court

10 P.2d 846

135 Kan. 433

OBERST v. MOONEY, Probate Judge, et al.

No. 30576.

Supreme Court of Kansas

May 7, 1932

Syllabus by the Court.

Son who was charged with killing father would not be precluded from inheriting father's estate unless convicted of murder (Rev. St. 1923, 22--133).

Where son was charged with murdering father, but jury disagreed and thereafter prosecution was dismissed without prejudice, son held entitled to inherit father's estate (Rev. St. 1923 22--133, 62--501).

Whenever administrator turns over property of estate in conformity with proper order of probate court, sureties on administrator's bond are discharged from liability.

Alleged heir of father held entitled to mandamus to compel probate judge and administrator to close estate and make final distribution.

In an original proceeding in mandamus to compel a probate judge and the administrator of an estate to close the estate and make final distribution, the record is examined, and it is held that the writ should issue. Appropriate orders for that purpose are made. The court retains jurisdiction to see that its orders are carried out.

Original proceeding in mandamus by Owen Oberst against V. P. Mooney Probate Judge of Butler county, and another.

Writ of mandamus issued.

C. L Aikman, of El Dorado, and John Madden, John Madden, Jr., and L. C. Gabbert, all of Wichita, for plaintiff.

C. L Harris, of El Dorado (K. M. Geddes, of El Dorado, of counsel), for defendant Fred Oberst.

HARVEY J.

This is an original proceeding in mandamus to compel the probate judge of Butler county to make an order for the final settlement of the estate of W. F. Oberst, deceased, finding that the plaintiff is the sole heir of the deceased and requiring Fred Oberst, administrator of the estate, to turn over to plaintiff, as such sole heir, the assets of the estate. An alternative writ was issued. the probate judge has made no answer or return thereto. The administrator has filed an answer. Affidavits on behalf of plaintiff have been filed, and he has moved that a peremptory writ issue.

The facts disclosed by the record are not seriously controverted and may be thus stated: On April 20, 1928, W. F. Oberst, a farmer residing in Butler county, his wife, and five of their children were killed, and the home in which they were living was burned. The circumstances indicated they had been murdered. Plaintiff is the only surviving child of W. F. Oberst and wife. He was charged with the murder of each of them. In July, 1929, charges against plaintiff for the murder of his mother, his sisters and brothers, were dismissed. Plaintiff was prosecuted for the murder of his father. Certain questions relating to that prosecution have been heretofore determined in this court. State v. Oberst, 127 Kan. 412, 273 P. 490; In re Oberst, 133 Kan. 364, 299 P.959. For this offense plaintiff was tried three times in the district court of Butler county. At each trial the jury disagreed, and on October 10, 1931, the cause of action against him for the murder of his father was, on motion of the county attorney, dismissed without prejudice.

On April 25, 1928, Fred Oberst, a brother of W. F. Oberst, was by the probate court of Butler county appointed as administrator of the estate of W. F. Oberst, deceased, and duly qualified as such administrator. In the affidavit and petition for appointment signed by Fred Oberst, it was recited that W. F. Oberst died intestate, leaving personal property of the probable value of $7,000, and leaving as his heir Owen 0berst, who is the plaintiff herein. After the arrest of Owen Oberst for the murder of his father, Fred Oberst filed in the probate court an affidavit, supplemental to the petition for letters of administration, in which it was recited that, since the granting of letters of administration, Owen Oberst had been charged with the murder of his father, which charge was then pending in court, and that the affiant does not know and is unable to state who is entitled to the property of W. F. Oberst, or to state who is his heir, or heirs, at law. Fred Oberst proceeded with the administration of the estate of W. F. Oberst, deceased, and among other things converted the personal property into cash and invested most of it in government bonds and retained the custody of the same for the benefit of the estate. The house which burned at the time of the death of W. F. Oberst was insured. Among other things, the administrator brought an action in the district court on the insurance policy. This action pended in court awaiting the outcome of the criminal prosecution against Owen Oberst.

Perhaps anticipating that the criminal action against Owen Oberst would be dismissed the administrator, Fred Oberst, on August 28, 1931, filed his final account as such administrator in the probate court and served notice of the final hearing on such account and request for order of distribution to be had on October 2, 1931, and gave due notice thereof, as provided by statute (R. S. 22--904). On that date the hearing was continued to October 12th, to permit the order dismissing the criminal action to be made, which was done on October 10th. On October 12, 1931, the matter of the approval of the final account of the administrator, determining who were the heirs of W. F. Oberst, deceased, and making an order for final distribution of the estate, came on for hearing. On that date one Dorinda A. McClain appeared in court and filed a claim against the estate in the sum of $500 for board and lodging of Owen Oberst from June, 1930, to September, 1931. This claim was contested by Owen Oberst and his counsel and was disallowed by the probate court. The claimant gave notice of appeal, and the court fixed the amount of the appeal bond at $500. Fred Oberst then presented his resignation as administrator of the estate of W. F. Oberst, deceased, which resignation was accepted by the court after a hearing. Counsel for Owen Oberst then suggested the appointment of Owen Oberst and John Madden, Jr., one of his attorneys, as administrators of such estate. They also requested the matter be continued until the next day, which request was granted. On the next day Fred Oberst presented for approval his final account, which had been brought up to date. This was examined and approved by the court. This showed that the administrator, after paying a sum allowed by the court for his services and that of his attorney, had on hand $980.69 in cash, eight government bonds of $1,000 each, and one of $500, and several certificates for shares in farm co-operative associations. No objections were taken to any items of the account or to the order of the court approving the same. The administrator, Fred Oberst, was ordered to bring this property into court for delivery to the administrator to be appointed by the court. Thereupon, on the application of Owen Oberst, Harry B. Garden was appointed and qualified as administrator de bonis non of the estate of W. F. Oberst, deceased. The matter was then adjourned to October 14th, and on that day to October 15th. On that day Harry B. Garden, in person and by his attorney, appeared and moved the court to set aside his appointment, and, after argument thereon, the motion was allowed. The matter was then continued until October 16th, and on that date until October 19th. On that date Owen Oberst appeared, and, as sole heir of W. F. Oberst, deceased, moved the court to make an order of distribution of the estate and to require Fred Oberst to turn over to him the property in his hands belonging to said estate, for the reasons: That the estate had been fully administered; that more than three and one-half years had expired since the administrator was appointed; that all debts of the estate had been paid or barred; that the administrator had filed his final account, which had been approved; that the charge against Owen Oberst for the murder of his father had been dismissed in the district court on the motion of the county attorney; that the claim of Dorinda A. McClain was not a debt of the deceased or the administrator and was barred; that he had offered to furnish bond to secure the payment of any judgment she might obtain and had objected to the order of the court accepting the resignation of Fred Oberst as administrator; that, seeking to comply with the rulings of the court, he had requested the appointment, of Harry B. Garden, which appointment was made, and that Garden had moved to set aside the order appointing him as being illegal, for the reason that the estate was fully administered at the time of his appointment, which motion was sustained; that he had endeavored to comply with the suggestion that he be appointed administrator of the estate, but had been unable to secure a bond from recognized surety companies; that he had never received any...