The Commercial State Bank of Waverly v. Ross

• Decision Date: 05 July 1913
• Docket Number: 18,365
• Citation: 90 Kan. 423,133 P. 538
• Parties: THE COMMERCIAL STATE BANK OF WAVERLY, Appellant, v. LETITIA C. ROSS, as Executrix, etc., Appellee
• Court: Kansas Supreme Court

133 P. 538

90 Kan. 423

THE COMMERCIAL STATE BANK OF WAVERLY, Appellant, v. LETITIA C. ROSS, as Executrix, etc., Appellee

No. 18,365

Supreme Court of Kansas

July 5, 1913

Decided July, 1913.

Appeal from Coffey district court.

Judgment modified indicated.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROBATE COURT--May Correct Classification of Claim at Subsequent Term. Where a demand against an estate, upon allowance by the probate court, is inadvertently assigned to a different class from that to which it rightfully belongs the court may, even at a subsequent term, correct the classification to correspond to the fact, upon due application and notice.

2. DEMAND--Against Estate--Note--Not "Expense of Last Sickness." A demand against the estate of a decedent, founded upon a note given by him to raise money to pay his doctor's bill, can not be classified as a part of the expenses of his last sickness.

3. EXECUTRIX--Paying Claims under $ 50 Without Affidavit--Credit Allowed Executrix. Where an executor or administrator has allowed and paid a just claim against the estate of less than $ 50, he is not to be denied credit therefor upon an accounting, because of his failure to require from the claimant the statutory affidavit of its correctness.

E. J. Crego, of Burlington, for the appellant.

Joe Ralston, of Burlington, for the appellee.

OPINION

MASON, J.:

George W. Ross died August 9, 1909. Letitia C. Ross was appointed executrix September 20, 1909. She filed an annual report October 3, 1910, showing the estate to be insolvent, all the assets having been devoted to the payment of claims. The Commercial State Bank of Waverly, a general creditor of the intestate, filed a motion attacking the report, and in effect asking that the executrix be denied credit for some of the payments made by her, so that a fund would be provided for the payment of the bank's claim. Before a final hearing of this motion the probate court reclassified several demands which had been allowed as claims of the fifth class, changing their rating to the second class. With these changes the report was approved, the result being that the bank was denied relief. It appealed to the district court, where the ruling was affirmed, and it now appeals to this court.

The principal contention of the appellant is that the order of the probate court allowing each of the demands referred to and classifying it as a claim of the fifth class, was in effect a judgment, which became final because not appealed from, leaving the court without power to make any change in the amount or classification. The probate court must be deemed to have found that the first classification was the result of an inadvertence. Under the provision of the code (Civ. Code, § 596, subdiv. 3) authorizing a judgment to be set aside "for mistake, neglect or omission of the clerk, or irregularity in obtaining it," the district court may vacate a judgment which was the result of a misapprehension on the part of the judge (Cooper...