Schnee v. Schnee

• Decision Date: 07 April 1900
• Docket Number: 9,647
• Citation: 61 Kan. 643,60 P. 738
• Parties: MAGGIE ANN SCHNEE v. WILLIAM G. SCHNEE et al
• Court: Kansas Supreme Court

60 P. 738

61 Kan. 643

MAGGIE ANN SCHNEE v. WILLIAM G. SCHNEE et al

No. 9,647

Supreme Court of Kansas

April 7, 1900

Decided January, 1900.

Error from Cowley district court; A. M. JACKSON, judge.

Joseph O'Hare, for plaintiff in error.

C. L Swarts, for defendants in error.

OPINION

JOHNSTON, J.:

This proceeding was brought to obtain probate of the last will of Gilbert Schnee, who died in Cowley county in 1883, and left surviving him his wife, Annie B. Schnee, who has since intermarried with Frank Reed, and two minor children, William G. and Louise. Maggie Ann Schnee contests the probate of the will, and claims that she is an heir of Gilbert Schnee. In his early life Gilbert Schnee married Mary Jane Reed, and a few months after the marriage he procured a divorce from her on the ground that she was unfaithful. Afterward the divorced woman gave birth to Maggie Ann, and she claims an interest in the estate as the daughter of Gilbert Schnee. In April, 1892, an application for probate was presented to the probate court of Cowley county by W. P Hackney, in behalf and as the next friend of the two minor children of Gilbert and Annie B. Schnee. It was alleged that about two weeks before his death, and while Gilbert Schnee was of sound mind and memory, he executed a will drawn up for him by P. A. Lorry, which was subscribed by Lorry and Frank Reed as witnesses; that he devised and bequeathed to Mamie Morris, a daughter of Annie B. Schnee by a former marriage the sum of from $ 300 to $ 500, the exact amount to be fixed by her mother, and to Maggie Ann, the daughter of Mary J. Reed, the sum of one dollar, and the residue of his property, personal and real, was given to William G. Schnee and Louise Schnee, his minor children, share and share alike; that in a few days after the execution of the will he sickened and died, without revoking the will and while the same was in full force and effect. After setting out a description of property owned by him at the time of his death, it was further alleged that the will sought to be probated had never been probated or offered for probate, and that it had been lost, spoliated or destroyed subsequently to the death of Gilbert Schnee.

Upon proof taken in the probate court, it was decided that a paper purporting to be the last will of Gilbert Schnee had been presented by Annie B. Schnee on June 25, 1883, for probate, and that the court, upon a hearing then had, decided that the paper presented was not a will, the same not having been written and witnessed as the law requires. The probate court held in the present case that the decision of the court rejecting the will in 1883, never having been modified or vacated, is conclusive, and that the will now offered for probate should be rejected. An appeal was taken from the decision of the probate court to the district court, in which, upon a full hearing, the will propounded was found to be the last will and testament of Gilbert Schnee; that it had been lost, spoliated or destroyed, but that the contents thereof had been substantially proved, and that the same had been duly executed and was in full force and unrevoked at the death of the testator. It was decreed that it should be admitted to probate, and that it was as effectual to pass property of the testator as though the original will had been admitted and duly recorded in the probate court.

It is contended that error was committed in overruling a motion to dismiss the appeal. A ground for dismissal was that Hackney, who appeared for the minors as a next friend and took the steps necessary to perfect the appeal, was without authority. Being infants and not considered to have sufficient discretion to conduct a suit, it was proper that they should be represented and their interest protected by a next friend. It is true that the statute does not specifically provide that infants may take an appeal from the decisions of the probate court through a next friend, but express statutory authority is hardly necessary. All courts guard the interests of infants, and that they may, by next friends, institute proceedings in the courts for the enforcement of their rights or the protection of their interests, is the universal practice, and one which may be regarded as part of the common law. Section 31 of the civil code (Gen. Stat. 1897, ch. 95, § 32; Gen. Stat. 1899, § 4275), which provides that the action of an infant must be brought by guardian or next friend, is only declaratory of the general rule, and, of itself, would seem to furnish express authority for taking an appeal to the district court. (Sutton v. Nichols, 20 Kan. 43; Burdette v. Corgan, 26 id. 102.) The record shows that due notice of appeal was given, the amount of the appeal bond fixed by the court, and that it was executed, accepted, and approved. The objections made to the notice and bond are immaterial.

Error is assigned on the overruling of a motion to suppress the deposition of Lyman Herrick. It was taken in pursuance of an ordinary notice such as is provided in the civil code for the taking of a deposition. It is contended that testimony for the probating of a will must be taken by a commissioner appointed by the probate court in pursuance of sections 14 and 47 of the act relating to wills (Gen. Stat. 1897, ch 110, §§ 14, 47; Gen. Stat. 1899, §§ 7592, 7627). While the court might have issued a special commission to some suitable person to take the deposition, it is evident that the one who did take it was deemed to be a suitable person, as the deposition was received and admitted in evidence. When the deposition was taken the case was pending in the...