Parnell v. Cottrell

• Decision Date: 06 November 1909
• Docket Number: 16,113
• Citation: 105 P. 502,81 Kan. 119
• Parties: VERNON J. PARNELL, as Executor and Administrator, etc., Appellee, v. C. A. THOMPSON AND W. A. COTTRELL, Appellants, AND JOHN MARRIAGE, Appellee
• Court: Kansas Supreme Court

105 P. 502

81 Kan. 119

VERNON J. PARNELL, as Executor and Administrator, etc., Appellee, v. C. A. THOMPSON AND W. A. COTTRELL, Appellants, AND JOHN MARRIAGE, Appellee

No. 16,113

Supreme Court of Kansas

November 6, 1909

Decided July, 1909. [Copyrighted Material Omitted]

Appeal from Kiowa district court; SAMUEL R. PETERS, judge pro tem.

STATEMENT.

HERBERT MARRIAGE, a resident of Moulsham Lodge, Chelmsford, in the county of Essex, England, departed this life at his residence on the 12th day of September, 1904, leaving two separate and distinct wills, one of which is known as the English will and the other as the American will. The American will contained a declaration that it related solely and exclusively to the testator's property in the United States of America, and not elsewhere. It named as executors a son of the testator Herbert J. Marriage, of Alberta, Canada, Walter Hilliard, of Chelmsford, England, and Vernon J. Parnell, of Mullinville Kan., and bequeathed to them all his real and personal property in the United States upon trust to convert the same into money, to be held upon further trust for certain purposes mentioned in the will. The English will disposed of all his property in that country, and was probated there. The American will was never probated in England. The original American will was afterward brought to Kansas and probated here under the circumstances hereinafter mentioned.

Herbert Marriage in his lifetime was the owner of a large amount of real and personal property situated in Kiowa county, Kansas. Defendant John Marriage, of Mullinville, Kan., is a nephew of the deceased, and owned a large tract of land adjoining the land owned by the deceased.

On the 12th day of October, 1903, Herbert Marriage and John Marriage entered into a partnership contract to carry on the business of stock raising and farming on what was known as the Eagle Canon ranch, in Kiowa county. By the terms of the contract each contributed to the business as capital, either in cash or land or other property, the sum of $ 30,000, and each was to share equally in the profits or losses of the enterprise. The property owned by the partnership consisted of about 10,000 acres of land, which was held by the partners under deeds conveying to each of them an undivided interest, and a large amount of cattle, hogs, and farming implements. The articles of agreement provided that the partnership was to continue for a term of seven years, terminating March 1, 1911. By the terms of the contract John Marriage was to manage and superintend the business of the partnership, and to furnish Herbert Marriage on the first day of March in each year a statement showing the accounts of the concern, the stock on hand, and the value thereof. From the time the partnership was formed John Marriage continued in possession of the property and conducted the affairs of the partnership as manager until after the death of Herbert Marriage. John Marriage was given a year's option from March 1, 1904, to purchase the interest of Herbert Marriage in the partnership. The contract contained the following provision:

"In case of the death of Herbert Marriage before the expiration of this contract then this contract shall be carried out by his executors to the same extent as if the said Herbert Marriage were living."

A few months after the death of Herbert Marriage, and on the 2d day of November, 1904, more than a year prior to the probate of the American will, John Marriage entered into a written contract with defendant C. A. Thompson, by which he leased to Thompson all the property of the ranch of every kind or description for a period of six years, terminating March 1, 1911. Under this contract Thompson was to manage the business, and John Marriage turned over the possession of the ranch and all the property of the partnership to him.

In the spring of 1905, and about the time of the expiration of the option which John Marriage held for the purchase of his deceased partner's interest, the defendants, John Marriage, C. A. Thompson and W. A. Cottrell, undertook to purchase the entire interest belonging to the heirs of Herbert Marriage, deceased, in the partnership business and in the ranch, and for that purpose sent John Marriage to England. He obtained from Walter Hilliard, the resident executor of the English estate, an option in writing for the purchase of the interest of the deceased in the partnership property which provided that if the conditions of the option were carried out the partnership agreement should be dissolved. The conditions were never complied with and the option expired.

In the month of November, 1905, Vernon J. Parnell, a resident of Kansas and the only one of the executors named in the American will who was a resident of the United States, presented the original American will to the probate court of Kiowa county for probate; and thereafter, on the fourth day of January, 1906, the same was probated, and Vernon J. Parnell qualified as sole executor. Letters testamentary were issued to him by the probate court, and he gave bond and qualified as executor. Parnell, as executor, requested John Marriage to qualify and act as surviving partner and give bond as required by law. John Marriage refused, for the reason that the property was in control of defendant Thompson. Thereafter John Marriage was cited to appear in the probate court of Kiowa county and requested to give bond and qualify as surviving partner. On his refusal, an order was made by the probate court appointing Vernon J. Parnell as administrator of the partnership property. He gave the bond as required by law and undertook to administer upon the partnership property. He requested John Marriage to make a statement of the condition of the property in compliance with the terms of the partnership articles. John Marriage failed to comply with this request, stating as a reason that it was impossible to do so because Thompson was in possession of the partnership property.

Thereupon, and during the year 1906, Vernon J. Parnell, as executor of the estate of Herbert Marriage, deceased, and as administrator of the partnership estate of John Marriage, surviving partner of Herbert Marriage, deceased, brought three suits in the district court of Kiowa county, two against defendant C. A. Thompson, and the third against defendants John Marriage, C. A. Thompson and W. A. Cottrell. In the first it was alleged that C. A. Thompson held the legal title to certain land in Kiowa county in trust for the partnership estate, and a decree was asked ordering a conveyance for the use and benefit of the partnership. The second suit against Thompson was for an injunction to restrain him from interfering with the possession of the plaintiff as executor of Herbert Marriage, deceased, and as administrator of the partnership estate, and from disposing of or converting any of the property of the partnership to his own use. The third suit was against the three defendants, and asked for a decree dissolving the partnership theretofore existing between the estate of Herbert Marriage, deceased, and John Marriage, and for a full and final accounting of the partnership business, and a further decree settling and determining the rights of the defendants to the partnership property and the possession thereof. A receiver was appointed to take charge of the property during the pendency of the suits. The several answers of the defendants denied the right of the plaintiff to maintain the actions, either as executor of the estate of Herbert Marriage, deceased, or as administrator of the surviving partnership, alleging that the probate court of Kiowa county was without jurisdiction to probate the American will and that all proceedings in relation thereto were void, and that under the terms of the partnership agreement the probate court had no jurisdiction to appoint an administrator of the partnership estate, for the reason that the partnership by the terms of the contract continued after the death of Herbert Marriage and was not to terminate until March 1, 1911.

Defendant C. A. Thompson denied that he held the title to any of the real estate in trust for the partnership, and alleged that he had purchased it with his own funds and had taken the title in fee simple.

The three suits were afterward consolidated and tried to the court, and separate findings of fact and conclusions of law were made.

Among the facts found are that Thompson was in possession and control of the ranch and partnership business from the time he moved there with his family, in November, 1904, and that the representatives of the estate of Herbert Marriage had no knowledge of the various contracts made by the defendants until a short time prior to the institution of the suits and never consented to or ratified the action of John Marriage in making the contract with Thompson; that Thompson brought cattle of his own to the ranch and mingled them with the partnership property, and the cattle were sold together and the proceeds deposited to the credit of Marriage & Thompson without any separate accounts being kept; that Thompson sold other property of the partnership and placed the proceeds to his individual credit at the bank; that the indebtedness of the ranch increased during his management from $ 3000 to $ 6800, to secure which John Marriage and C. A. Thompson, in November, 1905, executed a chattel mortgage on the partnership property.

As conclusions of law the court found that the probate court had jurisdiction to admit the original will to probate, and that the plaintiff as the representative of the estate had the right to institute the suits; that the contract entered into between the defendants for the purchase of the Herbert Marriage interest in the ranch was...