Shuckrow v. Maloney

• Decision Date: 08 October 1938
• Docket Number: 33848.
• Parties: SHUCKROW et al. v. MALONEY et al.
• Court: Kansas Supreme Court

83 P.2d 118

148 Kan. 403

SHUCKROW et al. v. MALONEY et al.

No. 33848.

Supreme Court of Kansas

October 8, 1938

Syllabus by the Court.

Where estate was still in course of administration in probate court, independent action in district court would not lie to recover sum of money allowed by probate court and paid by administrator to satisfy a claim against decedent's estate, on ground of alleged collusion and fraud between the administrator and claimant, but the correct procedure was by institution of appropriate supplementary proceedings in the probate court and by appeal from whatever erroneous rulings were made therein by the probate court.

Where an estate is still in course of administration in the probate court, an independent action in the district court will not lie to recover a sum of money allowed by the probate court and paid by the administrator to satisfy a demand against the decedent's estate, where such independent action is predicated on allegations of collusion and fraud between the administrator and the claimant. The correct procedure is by the institution of appropriate supplementary proceedings in the probate court and by appeal from whatever erroneous rulings are made therein by that court.

Appeal from District Court, Johnson County; Garfield A. Roberds Judge.

Suit by Julia Shuckrow and others against John Joseph Maloney administrator c. t. a., and another to recover a sum of money allowed and paid by order of the probate court on a claim against an estate still in course of administration. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment reversed and cause remanded, with instructions to enter judgment for defendants.

T. F Railsback, of Kansas City, and Gregory E. Hodges, of Kansas City, Mo., for appellants.

Howard E. Payne, of Olathe, for appellees.

DAWSON Chief Justice.

The principal legal question presented in this appeal relates to the propriety of an independent lawsuit in the district court to recover a sum of money allowed and paid by order of the probate court on a claim against an estate still in course of administration.

Antecedent matters necessary to an understanding of this action may be summarized thus:

One Cornelius Shuckrow, a native of Connecticut, left that state in 1875 and never returned. For varying intervals of time he sojourned in Pennsylvania, in Canada, in Kansas, and in Louisiana. He had married, but his wife died several years before him, and they had no children or other descendants. Shuckrow conducted a hotel at Gueydan, Vermilion Parish, in Louisiana, in 1931, but the record does not show how long he lived there.

About January 1, 1933, when Shuckrow was about 80 years old, he came to Johnson county, Kansas, and took up his abode with Mrs. Kate Maloney, a sister of his deceased wife. About July 3, 1934, he left this abode and went to the home of another Mrs. Maloney in Missouri, where he resided for about 6 months.

About January 15, 1935, he left Missouri and returned to his former home at Gueydan, Louisiana, where he died some three weeks later, on February 5, 1935.

On March 2, 1935, there was filed in the probate court of Johnson County, Kansas, a petition by John Joseph Maloney, son of the Mrs. Kate Maloney with whom Shuckrow had resided from January, 1933 to July, 1934. In it he alleged that Shuckrow had died a resident of Johnson county; that he had left an estate estimated at $8,000; and that the names of his heirs or other persons interested in his estate were unknown. He prayed that he be appointed administrator. An order appointing the petitioner was made the same day and he qualified forthwith.

Following this appointment, Maloney the administrator went to Shuckrow's former home in Gueydan, Louisiana, and among his effects the administrator discovered a will of Shuckrow executed on January 29, 1931. Maloney brought this will back to Johnson county and on March 7, 1935, he filed a petition in the probate court asking that it be probated. The court appointed the probate judge of Calcasieu Parish in Louisiana as commissioner to take depositions of the testamentary witnesses; and in due time the account of Maloney as administrator under his first appointment was settled and he was discharged on March 27, 1935; and he was at once reappointed as administrator c. t. a. and the estate was reopened for further proceedings.

While the first administration was still in existence, on March 20, 1935, one Harry Maloney, younger brother of the administrator, filed a claim against the Shuckrow estate for the sum of $1,620 for alleged services to Shuckrow as chauffeur and mechanic from January 1, 1933, to July 3, 1934, at the rate of $90 per month. The administrator consented that the claim might be heard at any time. On the day Shuckrow's will was admitted to probate, March 27, 1935, the claim was allowed in full by the probate court. Thereafter, time not shown, Maloney, administrator c. t. a., paid his brother's claim, and reported the fact in his first annual account filed on February 8, 1936.

At this point in our chronicle of happenings, we now turn to look at the contents of Shuckrow's will. In substance, it named a bank in Louisiana as his administrator (executor) of his estate; bequeathed $1,000 to the brother of his deceased wife and the same amount to each of her sisters, Mary M. Wiggins and Kate Maloney, mother of the administrator. The entire residue of his estate was bequeathed to his own four brothers and three sisters, Julia, Mary and Ellen Shuckrow,--all of whom, the testator assumed, were still alive and residents of Connecticut.

On August 8, 1935, the three persons last named filed a motion in the probate court to reopen the hearing on the claim of Harry Maloney for 18 months' alleged services to Shuckrow as chauffeur and mechanic. In this motion it was alleged that the moving parties were residuary legatees under the will of Shuckrow, that Harry Maloney's claim was unjust, exhorbitant and not a debt of Shuckrow at the time of his death, that its allowance was procured by working a fraud on the court, that the movants had no notice of the filing, presentation or allowance of the claim within time to appeal from its allowance. It was also alleged that evidence had recently been discovered tending to show that the claim was unjust, spurious and not owing to Harry Maloney from Shuckrow's estate.

The foregoing motion was met by an adverse motion to quash, filed by Harry Maloney, on the ground that it was in effect a request for a new trial filed out of time, and because the court was without jurisdiction to hear it. The motion of the three movants was heard and denied on August 30, 1935,--the order of the court reciting that as the claim had been allowed "and no appeal having been taken from said order during the term or ten days thereafter, the Court finds that it is without jurisdiction to hear the motion for a rehearing in said claim, and the motion to quash said motion is therefore sustained."

Thereafter, on October 18, 1935, this independent action was begun by these three sisters of Shuckrow against John Joseph Maloney, Administrator c. t. a., and against Harry Maloney for the recovery of $1,620, being the amount of the claim for alleged services as chauffeur and mechanic to Shuckrow which the probate court had allowed and which the administrator had paid.

In the petition plaintiffs alleged that they were residuary legatees under the will of their brother Cornelius Shuckrow. Other pertinent facts were alleged as narrated above; and it was alleged that the administrator and the claimant fraudulently filed the aforesaid claim for services to the amount of $1,620, and that--

"6. That said false and fraudulent claim was filed on March 20th, 1935, in said Probate Court, was exhibited to John Joseph Maloney on March 19th, 1935, and allowed by the court on March 27th, 1935. ***

"8. That the allowance of said claim was procured by the collusion of said defendants in practicing a fraud upon the Probate Court of Johnson County, Kansas, and by falsely representing to said court that said claim was justly due, owing and unpaid to said claimant from the deceased, whereas in truth said deceased was not indebted to said defendant, Harry Maloney, in any sum at the time of the death of the deceased, which fact the defendants well knew at the time they fraudulently procured the allowance of said claim by the Probate Court of Johnson County, Kansas.

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"10. That the time for appeal from the allowances of said claim expired prior to the discovery of said fraud, and that these plaintiffs have no adequate remedy at law.

"Wherefore, plaintiffs pray that they have and recover of and from the defendants the sum of $1,620.00, together with interest at six percent per annum from the 27th day of March, 1935, costs of suit and such other and further relief as may be just and equitable."

To this petition defendants demurred on various grounds,--the district court's want of jurisdiction, plaintiffs' want of capacity to sue, and no cause of action stated.

This demurrer was overruled, and the defendants then answered with a general denial.

The cause was first tried without a jury. On its own motion the court granted a new trial and called in an advisory jury. Evidence was adduced pro and con on the question whether in fact Harry Maloney had performed any services as chauffeur and mechanic for Shuckrow as represented to and allowed by the probate court and as paid by the administrator. The only question submitted for the jury's consideration read: "Was or was not the defendants guilty of collusion or fraud in securing the allowance of the claim of $1,620.00 in the Probate Court of Johnson County, Kansas ***?"

The...