Snedeger v. Schrader, 41041
| Decision Date | 06 December 1958 |
| Docket Number | No. 41041,41041 |
| Citation | 332 P.2d 586,183 Kan. 725 |
| Parties | Cosette SNEDEGER, Appellee, v. J. A. SCHARADER and Florence Schrader, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. A defendant may demur to a petition only where some one of the defects enumerated in G.S.1949, 60-705 appears on the face of the petition; and where such a defect does not appear, the objection to the petition may be taken by answer (G.S.1949, 60-707).
2. Under the provisions of G.S.1949, 59-2250 and 2251, a decree of descent does not create title, but merely declares who has acquired the title of decedent. In other words, the function of the decree is to declare the title which accrues under the law of intestate succession. It releases the title of the heirs from the condition of administration and furnishes the heirs with legal evidence to establish title.
Richard L. Ebersole, Wichita, argued the cause, and John Madden, Wichita, was with him on the briefs for appellants.
Benjamin Foster, Wichita, argued the cause, and Kenneth F. Beck and Bruce B. Fitts, Wichita, were with him on the brief for appellee.
This was a consolidated action by the alleged owner of two promissory notes against the makers thereof for recovery on the notes. For convenience, the petitions, which are identical except for dates of execution and due dates of the two notes, will be considered as one. Defendants appeal from an order overruling their demurrer to the amended petition.
The amended petition of Cosette Snedeger, plaintiff (appellee), alleged the execution by J. A. Schrader and Florence Schrader, defendants (appellants), of two promissory notes to Mrs. Bessie A. Mignery or order. Copies of the notes were attached to and made a part of the petition. Plaintiff alleged the maturity of the notes, the payment of a portion of the interest thereon and the refusal of defendants to pay the balance owing on the principal and interest. Plaintiff further alleged that she became the owner of the promissory notes by virtue of a decree of descent entered by the probate court of Reno county on March 3, 1955, in the matter of the estate of Bessie A. Mignery, deceased. The decree of descent, which was attached to and made a part of the amended petition, set forth the residence of the decedent in Reno county, her death more than one year prior to the filing of the petition, and listed certain real estate and personal property owned by decedent at the time of her death. After noting no will of the decedent had been admitted to probate and no administration of her estate had been had in the state, the decree declared plaintiff the sole heir of decedent. The court then decreed:
'* * * the above described real estate and personal property, and all other real estate and personal property within the state and owned by the decedent at the time of her death, subject to any lawful disposition thereof heretofore made, be and the same is hereby assigned to and vested in the following named person in the following proportion or part:
[Emphasis supplied.]
No specific mention was made in the decree of the promissory notes here in issue.
Defendants demurred to the amended petition on the grounds that plaintiff had no legal capacity to sue and the district court had no jurisdiction of the subject matter of the action. On this appeal from the overruling of the demurrer defendants maintain ownership of the promissory notes was not dealt with specifically by the probate court in its decree of descent and therefore plaintiff could not and did not acquire title to them by reason of the descent proceedings. Defendants then assert title to all choses in action belongs to the estate of a decedent and actions on such choses must be brought by an administrator or executor and cannot be brought by an heir or distributee. They maintain further that probate courts have exclusive original jurisdiction of all matters pertaining to the settlement and...
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