Rothrock's Estate, In re

• Court: Kansas Supreme Court
• Writing for the Court: THIELE
• Citation: Rothrock's Estate, In re, 252 P.2d 598, 173 Kan. 717 (Kan. 1953)
• Decision Date: 24 January 1953
• Docket Number: No. 38626,38626
• Parties: In re ROTHROCK'S ESTATE. JENKINS v. ROTHROCK.

Page 598

252 P.2d 598

173 Kan. 717

In re ROTHROCK'S ESTATE JENKINS v. ROTHROCK.

No. 38626.

Supreme Court of Kansas.

Jan. 24, 1953.

Rehearing Denied March 14, 1953.

Syllabus by the Court.

1. Where a court has jurisdiction of the parties to an action and of the subject matter thereof and renders a judgment within the pleadings and its competency, the judgment is final and conclusive unless corrected or modified on appeal or by other methods prescribed by statute.

2. If jurisdiction exists the court has power to decide the case whether its decision is right or wrong. If there is error, the remedy is by appeal.

3. The record examined in a proceeding to vacate a judgment on the asserted ground the judgment was void, and held, that the judgment was not void, and if voidable, was not appealed from nor attempted to be vacated by any timely statutory procedure and is final and conclusive.

Bert E. Church, of Wellington, and D. Arthur Walker, of Arkansas City (Wm. E. Cunningham and William R. Howard, both of Arkansas City, on the briefs), for the appellant.

W. H. Schwinn and Ford Harbaugh, both of Wellington, (Tom L. Schwinn, of Wellington, on the briefs), for the appellee.

THIELE, Justice.

A proceeding was commenced in the probate court by the filing of a petition to vacate and set aside an allegedly void order of final settlement assigning property belonging to a decedent's estate. From an adverse judgment the petitioner appealed to the district court, which denied the relief sought and petitioner has appealed to this court.

The following facts are admitted either by the pleadings or by express stipulation of the parties.

Edwin A. Rothrock, who was the husband of Lutie M. Rothrock and the father of Ray R. Rothrock, made a last will and testament in which he bequeathed and devised his entire estate to his wife. He died on December 14, 1940, and on January 27, 1941, his will was duly admitted to probate. This will did not bear any consent to its terms by Lutie M. Rothrock. She was appointed and qualified as administratrix with the will annexed and proceeded to administer her husband's estate, but she did not file in the probate court any formal election to accept the provisions of the will as contemplated by G.S.1939 Supp. 59-2233, then in force. On December 31, 1941, she filed her final report. We need not notice the details of her accounting therein made, but her report alleged specifically that Edwin A. Rothrock died testate on December 14, 1940; that he left as his sole and only heirs at law his widow Lutie M. Rothrock and his son Ray R. Rothrock, but that under his will all of his property was willed to and became the property of Lutie M. Rothrock and that under the will all of the property, real and personal, should be vested in her by an order of the court, and her prayer was in accord. The probate court entered an order directing that hearing be held on January 23, 1942, and that notice be given. Notice, of which no complaint is made, was given. It is expressly conceded that Ray R. Rothrock received a copy of the notice of hearing. On the day set the hearing was had. The journal entry discloses the probate court found that no objections or exceptions had been filed or made by any person to the final report and that no one appeared to object or protest it; that the report was full and correct and should be approved and confirmed; that the court further found and adjudged Edwin A. Rothrock had died testate; that his heirs at law were his widow and son; and that under his will Lutie M. Rothrock was bequeathed and devised all of his estate and it should be ordered and decreed by the court to be vested in her; and it entered judgment accordingly. No appeal was taken by any person from the above findings and judgment.

The above named Ray R. Rothrock died January 28, 1944, leaving a last will and testament under which he bequeathed and devised all of his property to his wife Edna Rothrock, whom he appointed as executrix. The will was admitted to probate, she filed her election to accept the provisions of the will and she administered his estate which was ultimately finally settled on March 1, 1945. For whatever it may be worth, it is noted the record shown no effort on the part of the executrix of Ray R. Rothrock to claim or obtain possession of any assets of the estate of Edwin A. Rothrock on any theory that Ray R. Rothrock, at the time of his death, had any interest therin.

Nothing further occurred in the Edwin A. Rothrock estate until March 14, 1950, when a petition was filed by Edna Rothrock Jenkins, formerly Edna Rothrock, surviving spouse of Ray R. Rothrock, in which she pleaded at length the death of Edwin A. Rothrock, testate, admission of his will to probate; that Lutie M. Rothrock had not consented to the terms of his will, had failed to file an election to accept the terms of his will as provided by G.S. 1939 Supp. 59-2233, and by reason thereof was conclusively presumed to have renounced his will and have taken under the laws of intestate succession and that Ray R. Rothrock became the owner of one-half of all the property of Edwin A. Rothrock. She then pleaded at length that Lutie M. Rothrock, administratrix with the will annexed of Edwin A. Rothrock, had filed a final settlement and had given notice of the hearing thereof; that Ray R. Rothrock received a copy thereof, but that no statement or claim was made in the notice that Lutie M. Rothrock intended to claim any interest in the estate other than her right under her statutory election, and relying thereon Ray R. Rothrock made no appearance at the hearing on final settlement; and that the probate court, without any notice to him ordered all of the estate assigned to Lutie M.Rothrock and nothing to Ray R. Rothrock. Petitioner further alleged that that portion of the order assigning all of the property to Lutie M. Rothrock was void for the reason the probate court had no jurisdiction in that (a) Lutie M. Rothrock did not consent to the will, and did not file her election to accept it and by reason thereof she was conclusively presumed to have renounced the will and to take under the laws of intestate succession, and the estate of Edwin A. Rothrock was owned by Lutie M. Rothrock, surviving spouse, and by Ray R. Rothrock; (b) that the notice of hearing of final settlement gave no notice to Ray R. Rothrock of the intention of Lutie M. Rothrock to ask the court to assign the entire estate to her pursuant to the will and contrary to law, no written election to accept the will having been filed by her, and that to the contrary, the notice implied and led Ray R. Rothrock to believe the property would be assigned under the laws of intestate succession; (c) that upon failure of Lutie M. Rothrock to file an election to take under the will Ray R. Rothrock automatically and by virtue of law became the absolute owner of an undivided one-half interest of the real and personal property of Edwin A. Rothrock, and the order of the probate court assigning the entire estate to Lutie M. Rothrock without notice to Ray R. Rothrock, or an opportunity to be heard and to assert his rights, deprived him of his property without due process of law; and (d) that no proceeding was ever brought by Lutie M. Rothrock to vacate or set aside her statutory election to take her share of her husband's estate under the laws of intestate succession rather than under the will, no such proceeding was before the probate court on hearing of the final settlement, and by reason thereof was outside the issue and the order was invalid, null and void as being beyond and outside the jurisdiction of the probate court. It was further alleged that by reason thereof Ray R. Rothrock was entitled to an undivided one-half of his deceased father's estate. We need not review allegations showing that petitioner succeeded to the rights of Ray R. Rothrock.

To the above petition Lutie M. Rothrock filed a lengthy answer. We shall not review the many admissions or denials therein contained, but do note specific allegations that Lutie M. Rothrock was never in the probate court at any time during the administration of her husband's estate when she was not accompanied by her son and that he was personally present on January 23, 1942, when the court made its decree of final settlement and distribution; that Ray R. Rothrock knew that she was claiming the entire estate and during his lifetime made no objection; that the petitioner, after her marriage to Ray R. Rothrock (November 12, 1942) had full knowledge of the terms of the will and made no objection until she filed her petition on March 14, 1950; that the order of the probate court of January 23, 1942, was not a void order; that notice of hearing served on Ray R. Rothrock of the hearing for final settlement was proper and that the petitioner is barred by the statute of limitations; that Ray R. Rothrock knew that his mother had elected by her acts and conduct to take under the will, and that petitioner knew it and was estopped to claim that she had made no election as alleged in...