Preston's Estate, In re

• Decision Date: 06 June 1964
• Docket Number: No. 42711,42711
• Citation: 193 Kan. 145,392 P.2d 922
• Parties: In re ESTATE of Lewis Q. PRESTON, Deceased. Warren D. THOMPSON, Appellant, and Kenneth V. Moses, Guardian Ad Litem, Appellant, v. Dorothy Preston SURPRISE, Appellee.
• Court: Kansas Supreme Court

Page 922

392 P.2d 922

193 Kan. 145

In re ESTATE of Lewis Q. PRESTON, Deceased.

Warren D. THOMPSON, Appellant, and Kenneth V. Moses, Guardian Ad Litem, Appellant, v. Dorothy Preston SURPRISE, Appellee.

No. 42711.

Supreme Court of Kansas.

June 6, 1964.

Rehearing Denied July 14, 1964.

Syllabus by the Court

1. An insurance policy, whether it be a liability or an indemnity policy, constitutes such an estate of a nonresident insured decedent as to justify the issuance of letters of administration and the appointment of an administrator of such estate, overruling In re Estate of Rogers, 164 Kan. 492, 190 P.2d 857.

2. The record is examined in an action commenced in the probate court of Marshall county and appealed therefrom to the district court, by a petitioner seeking appointment of an administrator of a nonresident decedent's estate where decedent possessed an automobile indemnity insurance policy under the provisions of which the insurer was obligated to defend the insured, all as more fully set out in the opinion, and it is held, under the facts and circumstances herein, venue of such probate proceeding existed in either Geary or Marshall county and the trial court's order and judgment, following In re Estate of Rogers, supra, sustaining respondent's demurrer to the evidence, is reversed.

Robert A. Schermerhorn, Junction City, argued the cause, and C. L. Hoover and William R. King, Junction City, and Richard C. Wells, Manhattan, were with him on the briefs for appellant, Warren D. Thompson.

Kenneth V. Moses, Marysville, was on the brief as guardian ad litem.

Howard Harper, Junction City, argued the cause, and Lee Hornbaker, Richard F. Waters, and Bob Abbott, Junction City, and Robert F. Galloway and Edward F. Wiegers, Marysville, were with him on the briefs for appellee.

ROBB, Justice.

An action was commenced in the probate court of Marshall county for appointment of an administrator of decedent's estate and an appeal was taken therefrom to the district court. This appeal is from an order of the district court sustaining respondent's demurrer to the evidence of claimant and from its order overruling claimant's motion for new trial.

Claimant, as plaintiff, in October, 1955, had filed a tort action in the district court of Geary county, Kansas, to recover for personal injuries received as the proximate result of an accident at the intersection of West Eighth Street and Weside Avenue in Junction City, Geary county wherein claimant's vehicle and one driven by decedent, Lewis Q. Preston, collided. Grounds of negligence were set up therein and damages were claimed in the amount of $13,350. A motion to quash the service of summons was properly overruled by the district court. Preston, by and through his attorneys, had then filed a motion for additional time because he, as a master sergeant in the United States Army, had been ordered to overseas duty in Germany and he also made application for an order to stay the proceedings, which stay was granted to be in effect until he was discharged and returned to the United States, or until he could effect his defense in the tort action. In granting the stay on June 4, 1956, the district court further ordered:

'* * * that time for pleading herein by defendant be extended so as to permit defendant 30 days within which to answer or otherwise plead herein following the dissolution of this stay order upon formal application by plaintiff and personal notice to defendant and his attorneys of record.'

The district court of Geary county made subsequent orders as follows: On October 6, 1956, the case was passed; during 1957 and 1958 it was noted that Preston was still in military service; and by February 3, 1959, that he had died.

The death of decedent gave rise to the action presently before us wherein claimant filed a petition for administration in the probate court of Marshall county, the residence of claimant, in which it was alleged that decedent had died possessed of a 'public liability' insurance policy under which the insurer was obligated to defend the insured, and the insurer was so defending in the tort action in the district court of Geary county; that under the policy the insurer had the further obligation to pay any judgment entered against the insured to the extent of the limits provided therein; that decedent possessed other property in the state of Kansas; that it was necessary for the protection of claimant's rights to have an administration of decedent's estate and that no administrator or personal representative had been appointed for decedent's estate in Indiana, the state of his residence. It was also alleged that decedent's widow and his two minor children were his only heirs at law and their residence was in Hammond, Indiana.

Defenses denominated 'Answers' were filed in the probate court of Marshall county by the attorney appointed for such heirs, and other persons interested in the estate who may have been in the military service, and for the guardian ad litem, who had been appointed for the minor heirs of the decedent, which defenses were general denials and requests that the petitioner be required to make strict proof.

Decedent's widow and heir at law, whose residence was Cedar Lake, Indiana, also filed a defense wherein she substantially alleged that decedent died intestate September 2, 1956, while in the military service at Nurnberg, Germany, that his legal residence was Galesburg, Michigan, where he had entered military service; there had been no administration of decedent's estate; attached as an exhibit was copy of the official statement of decedent's death received by his widow on March 1, 1957, from the adjutant general of the United States Army which showed his death had occurred on September 2, 1956. Her defense further alleged the action in the probate court was barred by the nonclaim statute (G.S.1949, 59-2239) and was further barred because the probate court of Marshall county was without venue and jurisdiction as required by G.S.1949, 59-2203.)

The probate court ordered the appointment of an administrator for decedent's estate and set bond in the amount of $1,000, from which order the widow appealed, serving notice on the probate judge, as well as the claimant and the appointed administrator and their attorneys. This gives rise to the question whether the widow's notice of appeal from the probate court to the district court was properly served. We decide that it was under our decision in In re Estate of Patterson, 185 Kan. 135, syl., 340 P.2d 369, where it was held:

'* * * (1) G.S.1949, 59-2405 provides that a written notice of appeal shall be served upon the adverse party, or his attorney of record, or upon the probate judge for the adverse parties, but service upon all three is not required to perfect the appeal, proper service upon any one of the three named in the statute is sufficient; (2) the acknowledgement of service of the notice of appeal by the probate judge was service upon all adverse parties, and (3) the acknowledgement of service by the probate judge dispensed with the necessity or proof...