Powers v. Scharling
| Decision Date | 07 December 1907 |
| Docket Number | 15,249 |
| Citation | 92 P. 1099,76 Kan. 855 |
| Parties | MARTHA POWERS et al. v. ALBERT D. SCHARLING |
| Court | Kansas Supreme Court |
Decided July, 1907.
Error from Dickinson district court; OSCAR L. MOORE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
EXECUTOR'S SALE--Jurisdiction--Estoppel. Whether or not, upon an application by an executor for an order to sell real estate to pay debts, a probate court has jurisdiction to determine a question of adverse title, a creditor of the estate who with full knowledge of all the facts accepts payment of his claim out of the proceeds of such a sale cannot be heard to deny the purchaser's title upon the ground that the testator before his death had conveyed the land to such claimant.
Robert H. Kane, G. W. Hurd, and E. A. Austin, for plaintiffs in error.
Thomas Dever, for defendant in error.
David Sibrell executed a will in which was incorporated the following provision:
"I desire and design to, and I do by this paper writing (both a will and a deed), create, convey to, and vest in, my beloved daughter, Harriet Campbell, a present interest and estate in and to all the estate of which I am now or shall be at the time of my death seized, or to which I am now or shall be then entitled, to the extent of one-half thereof, always however, subject to the payment of the said debts, expenses and legacies heretofore mentioned, and also to a life-estate in me for and during the period of my natural life, and this present interest and estate I make upon a good, valuable and sufficient consideration from said Harriet Campbell, in addition to the consideration of natural love and affection I bear toward her."
A similar clause purported to convey to Harriet Campbell, as trustee for the benefit of Martha Powers, her sister, the other half interest in the real estate, subject to the same limitations. Sibrell died, and a subsequent will was duly probated. The personal property was insufficient to pay the indebtedness of the estate. At the time of his death Sibrell had no real estate other than an eighty-acre tract which he had owned when he made the first will. The executor applied for an order to sell this to pay debts. Martha Powers and Harriet Campbell appeared and resisted the application, on the ground that the land was theirs in virtue of the writing already described as incorporated in the earlier will. The order was made, however, and the land was sold for $ 725 to Albert D. Scharling, who received a deed and took possession. So much of this sum as was necessary was used in paying the claims allowed against the estate, including one of Martha Powers's for $ 49 and one of Harriet Campbell's for $ 32.
Thereafter Martha Powers and Harriet Campbell brought an action against Scharling to recover the land, claiming that the instrument executed by Sibrell had at once vested a title in them and that the executor's deed was void. A demurrer to their petition was submitted, under an express stipulation that it should be sustained only in case such instrument was held to be wholly testamentary. The trial court sustained the demurrer, but upon proceedings in error the decision was reversed, this court holding that so far as the instrument related to real estate owned by Sibrell at the time of its execution it was contractual and irrevocable. (Powers v. Scharling, 64 Kan. 339, 67 P. 820.) A trial resulted in a judgment for the defendant, which was reversed upon the ground that competent evidence had been rejected. ( Powers v. Scharling, 71 Kan. 716, 81 P. 479.) At a second trial it was agreed that all disputed facts should be submitted to the jury by special questions and that all other matter should be submitted to the court. Pursuant to this arrangement the jury made a number of findings of fact, but returned no general verdict. The court adopted these findings (with one exception, to be noted later), made some additional ones based upon the admissions of the parties and the undisputed evidence, and announced various conclusions of law fatal to a recovery by the plaintiffs. A judgment for the defendant followed, from which error is prosecuted.
The position of the plaintiffs is that the instrument signed by Sibrell vested in them upon its delivery, which was found by the jury to have taken place immediately upon its execution, a title to the land, subject only to Sibrell's life-interest and to what was in effect a lien for the payment of the charges against his estate; that no title was left in the testator to be sold by his executor, and that the only method available for the enforcement of the lien was by an equitable action in the district court. To this the defendant responds that whatever right the two daughters acquired was in subjection to a title remaining in their father as security for the payment of his debts, and that the executor's sale was properly made; or, if not, that the probate court had jurisdiction of the subject-matter and even if the order to sell was erroneous it was not void, and not having been appealed from is conclusive, not being open to collateral attack; and that at all events the plaintiffs, having accepted a part of the proceeds of the sale in satisfaction of their demands against the estate with a full knowledge of all the facts, are estopped to question the validity of the deed. The trial court sustained all of the defendant's contentions.
The argument against the right of the executor to sell the land is at least plausible. And if the title had in fact passed to Sibrell's daughters there is difficulty in giving the decision of the probate court to the contrary the effect of an adjudication. The usual rule is that probate courts cannot determine questions of title so as to conclude persons claiming adversely to the estate--that the power to decide what shall be done with property owned by a decedent does not include the power to decide what property the decedent owned. (11 Cyc. 796; 18 Cyc. 745; 11 A. & E. Encycl. of L. 1094; Stewart v. Lohr, 1 Wash. 341, 25 P. 457, 22 Am. St. Rep. 150; Matter of Will of Walker, 136 N.Y. 20, 32 N.E. 633.) A different view, however, is suggested in section 173 of Van Fleet's Collateral Attack, but the only case cited in its support turned upon the phraseology of the statute involved.
In Amos, Adm'r, v. Livingston, 26 Kan. 106, a question of adverse title was litigated in proceedings begun by an...
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Moffett v. Commerce Trust Co.
...in connection therewith rendered them liable to appellant in both capacities. Sheldon v. Pruessner, 52 Kan. 579; Powers v. Scharling, 76 Kan. 855; Underwood v. Greenless, 131 Kan. 312; Antrim v. International Life Ins. Co., 128 Kan. 65; Railroad v. Morris, 7 Kan. 210; Bledsoe v. Seaman, 77 ......
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Moffett v. Commerce Trust Co.
... ... rendered them liable to appellant in both capacities ... Sheldon v. Pruessner, 52 Kan. 579; Powers v ... Scharling, 76 Kan. 855; Underwood v. Greenless, ... 131 Kan. 312; Antrim v. International Life Ins. Co., ... 128 Kan. 65; Railroad v ... ...
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...quasi-estoppel [263 P.3d 862] does not. The Kansas Supreme Court first introduced the concept of quasi-estoppel in Powers v. Scharling, 76 Kan. 855, 859, 92 P. 1099 (1907): “It is a familiar and well-settled principle that one who with full knowledge of the facts accepts the benefits of a v......
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... ... in its ordinary signification. Ions v. Harbison, 112 ... Cal. 260, 44 P. 572, and cases there cited. In Powers v ... Scharling, 76 Kan. 855, 92 P. 1099, it was said to be ... unimportant whether the principle applied be described as ... estoppel, ... ...