State ex rel. Beck v. Good

• Decision Date: 05 October 1935
• Docket Number: 32607.
• Citation: 49 P.2d 633,142 Kan. 434
• Parties: STATE ex rel. BECK, Atty. Gen., v. GOOD et al.
• Court: Kansas Supreme Court

49 P.2d 633

142 Kan. 434

STATE ex rel. BECK, Atty. Gen., v. GOOD et al.

No. 32607.

Supreme Court of Kansas

October 5, 1935

Syllabus by the Court.

Generally statute will be held to operate prospectively and not retroactively, unless legislative intention to make statute operate retroactively clearly appears.

Statute providing for administration of estates, where one dies intestate without known heirs, which statute changed procedure under prior statute, held inapplicable to administration of estate in process of administration when subsequent statute became effective (Rev. St. 1923, 22--933 to 22--935, 22--1201 to 22--1206, 77--201 (1); Laws 1935, c 168, §§ 1-7).

1. A statute will not be construed to operate retrospectively unless the intention of the Legislature that it should so operate is clearly expressed.

2. The provisions of a statute providing for the administration of estates where one dies intestate and without known heirs which changes the procedure in effect at the time of the enactment of the statute under construction, are examined and it is held that the Legislature did not intend the provisions of the later statute should apply to the administration of estates in process of administration when the act became effective.

Mandamus proceeding by the State, on the relation of Clarence V. Beck, Attorney General, against Josiah Good, administrator of the estate of Ellen Doyle, deceased, and another.

Writ denied.

Clarence V. Beck, Atty. Gen., and Harold M. Hauser, Asst. Atty. Gen., for plaintiff.

Braden C. Johnston, of Marion, for defendants.

SMITH Justice.

This is an action for a writ of mandamus. The plaintiff seeks a writ commanding the administrator of the estate of Ellen Doyle to take charge of the real estate left by her. The facts are all contained in the pleadings.

On March 12, 1935, Ellen Doyle died intestate in Marion county, Kan. At the time of her death she was seized of a large amount of property, both real and personal. The circumstances are such that there is a question as to whether she left any known heirs.

At the time this action was begun, a number of people had filed claims in the probate court asking that they be decreed to be heirs. Soon after the death of Miss Doyle, the defendant, Josiah Good, was appointed administrator of the estate. He qualified and took control of the personal property.

On March 25, 1935, the state by an appropriate action in the district court procured the appointment of a conservator of the real estate owned by Miss Doyle when she died. This conservator qualified and took charge of the real estate. This action was taken under the authority of McVeigh v. First Trust Co., 140 Kan. 79, 88, 34 P.2d 571. In that case this court held that, where it was not necessary to sell real estate of which a deceased died seized to pay debts, the administrator has nothing to do with it, and it passed directly to the heirs. That was a case where there was a question about whether the deceased died without heirs. This court said that the district court should appoint a conservator to take charge of and preserve the real estate.

That action construed the provisions of R. S. 22--933 to 22--935, and R. S. 22-- 1201 to 22--1206, both inclusive. Sections 22--933 to 22--935 provide that, when a person dies without heirs and intestate, the superintendent of schools of the county shall file a petition in probate court calling the matter to the attention of that court. The sections provide that the probate court shall order the administrator to sell the real estate. This action could not be begun until three years from the date of the appointment of an administrator for the estate. The sections then provide that the administrator shall pay the proceeds of the sale to the county treasurer for the benefit of the common schools of the state. They provide further that, if at any time within twenty-one years after the date of the payment of the money to the county treasurer an heir should appear and prove heirship satisfactorily to the probate court, the state treasurer shall pay the money to the claimant.

R. S. 22--1201 to 22--1206, provide that, when the state superintendent or the county superintendent of public instruction shall hear of the existence of an estate of a person who has died without heirs, they shall notify the county attorney and the Attorney General (22--1201). They also provide (22--1202) for any probate court giving a like notice to the same officials.

The next section (22--1203) makes it the duty of the county attorney to scrutinize such estates and to prevent the spoliation of them by fraudulent claims and to conserve all such estates for the benefit of the common schools of the state.

The next section (22--1204) provides that, whenever in the opinion of the probate court the interests of the common schools require, the probate court may make an allowance out of the estate to defray the reasonable expenses of the county attorney in making inquiries and in the examination of witnesses touching the rights of claimants to the estate.

The next section (22--1205) makes it unlawful for the county attorney or Attorney General to be the attorney for any pretended heir or devisee not residing in the county where the estate was located.

The next section (22--1206) makes it the duty of the Attorney General to see that the act is obeyed, and provides that where, in the opinion of the Governor, the interests of the public require it, the Attorney General may supersede the county attorney.

The sections which have just been described were all in effect on March 12, 1935, when Miss Doyle died. It is also the settled law of the state that the real estate of a person dying intestate passes directly to his heirs; that in such a case one claiming to be an heir might bring an action in the district court to establish his title and that a probate court has no jurisdiction to try the title to real estate. See McVeigh v. First Trust Co., supra. The actions that have been heretofore described were taken pursuant to these provisions.

On May 15, 1935, chapter 168 of the Session Laws of 1935 was published and became effective. It repealed all the sections that have been described that had to do with the disposition of the estate of a person who died intestate and without heirs (section 7). It set up a new manner in which such estates should be handled.

The first section of this chapter provides for the appointment of an administrator and for notice to the county attorney and Attorney General. The section ends with the following provision: "The probate court shall have exclusive original jurisdiction of all questions legal or equitable, arising in the administration and distribution of such an estate."

The second section provides for the bond of the administrator, for the publication of a notice and that the administrator shall take into his possession all the property left by deceased, both real and personal. The section further provides that the personal property be converted into cash as expeditiously as possible, and directs that the administrator collect the rents and other income from the real property. The section contains the following provision: "If no one appears to claim as an heir, devisee or legatee of the decedent within one year after the appointment of the administrator the court shall direct the real property of the decedent to be sold for cash."

The next section (section 3) provides that the net proceeds of the estate shall be paid to the state treasurer and become a part of the state school fund. It provides that this money shall be kept as a temporary fund until ten years after it shall have been received, at which time it shall be covered into the perpetual school fund of the state, provided that no one in the meantime has established his right to it as an heir, devisee, or legatee of the decedent.

The next section (section 4) provides that one claiming the estate as heir of decedent shall present his claim to the probate court within ten years after the administrator was appointed or be barred. The section then provides that a party aggrieved at the ruling of the court may appeal to the district court as other appeals are taken from the probate court and that the appeal shall be tried de novo in the district court. Provision is then made for appeal to the supreme court.

The next section (section 5) provides that, if the estate has been delivered to one or more who claimed as an heir of decedent and whose claim was established, and later, but within ten years after the appointment of the administrator, some one else establishes a claim, neither the state nor the school fund commission shall be liable to such claimants, but the party in whose favor the later claim was established shall have a cause of action against the party to whom such payment was made.

The next section (section 6) provides that the state shall be a party and entitled to be heard in all actions having to do with the distribution of the estate. It provides that the county attorney shall represent the state and shall be the legal representative of the administrator; that he shall protect the estate for the school fund and diligently defend against all claims not clearly meritorious. It further provides that expenses incurred by the county attorney in representing the state in such actions shall be paid by the county as are other expenses incident to the conduct of the office of county attorney. The section then provides that the Attorney General may...