Waltz v. Sheetz

• Decision Date: 07 November 1936
• Docket Number: 33180.
• Citation: 144 Kan. 595,61 P.2d 883
• Parties: WALTZ v. SHEETZ et al. (LEWIS, Intervener).
• Court: Kansas Supreme Court

61 P.2d 883

144 Kan. 595

WALTZ v. SHEETZ et al. (LEWIS, Intervener).

No. 33180.

Supreme Court of Kansas

November 7, 1936

Syllabus by the Court.

As respects whether conveyance from husband to wife was fraudulent, conflicting testimony of wife supported finding that there was no consideration (Rev.St.1923, 23-- 201).

As respects whether conveyance of house and lot from husband to wife was fraudulent, evidence that other realty owned by husband was mortgaged and that mortgages were foreclosed with no equity to owner supported finding that husband was insolvent at time of conveyance.

As respects whether conveyances from husband to wife and from wife to daughter were fraudulent, evidence that house was leased from year to year, and that husband and wife lived in other places, which they repeatedly declared to be their home for voting purposes, supported finding that property was not homestead of husband at time of his death nor of wife when she subsequently conveyed property to daughter (Rev.St.1923 23-- 201).

Claims against estate, which were filed in probate court within one year after letters of administration were first issued, held not barred by nonclaim statute (Rev.St.Supp. 1933, 22--702).

Proceeding by administrator to set aside conveyances from decedent to wife and from wife to daughter and to subject property to payment of decedent's debts held not barred by limitation in two years, since three-year limitation statute relating to actions to sell for payment of debts lands of decedent which are alleged to have been fraudulently conveyed was controlling (Rev.St.1923, 22--803, 60 --306, cl. 3).

1. On the issue whether certain property was the homestead of one of the parties at a specified time, the record is examined and it is held, that the finding and judgment of the trial court against the claim of homestead are supported by substantial, competent evidence.

2. In a proceeding by an administrator to subject certain property to the payment of the debts of decedent, under the facts stated in the opinion, it is held, that the administrator's cause of action was not barred either by our nonclaim statute or by our statute of limitations.

Appeal from District Court, Shawnee County, Second Division; Paul H Heinz, Judge.

Action by Margaret L. Waltz against Mary J. Sheetz, Mary Mildred Blean, and another, wherein John W. Lewis, administrator de bonis non of the estate of Isaac S. Sheetz, deceased intervened. From an adverse judgment, named defendants appeal.

J. J. Schenck and C. P. Schenck, both of Topeka, for appellants.

Ralph T. O'Neil, John D. M. Hamilton, and Barton E. Griffith, all of Topeka, for appellee John W. Lewis.

W. B. Rogers and S. L. Lashbrook, both of Topeka, for appellee Margaret L. Waltz.

HARVEY Justice.

Briefly stated, this action as it was tried in the court below and as it reaches us involves liens claimed by the plaintiffs and the intervener upon certain real property which the defendant Mary J. Sheetz claimed as a homestead, and which her daughter, Mary Mildred Blean, claimed under a deed from her mother. The trial court made findings of fact and held the property not to be the homestead of Mrs. Sheetz and rendered judgment accordingly. Mrs. Sheetz and her daughter have appealed.

The findings of fact made by the trial court may be summarized as follows: Mary J. Sheetz and Isaac S. Sheetz were married in 1899, and thereafter made their home in Topeka. Mr. Sheetz died in January, 1933. About 1914 they purchased a residence property on Garfield avenue, where they resided with their only child, now Mrs. Blean, for about ten years. Mr. Sheetz appears to have been in the real estate and insurance business. In 1923 he purchased lots in a residence district on Boswell avenue and had a modern bungalow built thereon. This was completed in 1924, and he and his family moved into the property and resided there until August, 1926. In that month Mr. Sheetz brought an action against his wife for divorce and obtained a decree of divorce on October 23, 1926, which decree, among other things, forever barred the defendant Mary J. Sheetz from claiming any right, title, or interest in or to any of the real or personal property which Mr. Sheetz then owned, or might thereafter acquire. About December 1, 1926, Isaac S. Sheetz leased the property on Boswell avenue for one year to a Mr. Barnett, who soon thereafter moved into it and occupied it. On December 26, 1926, Isaac S. Sheetz and Mary J. Sheetz were remarried and went to live at the Kansan Hotel, and remained there until January, 1929, when they moved into the Hurley Apartments at Eleventh and Harrison streets, and remained there until January, 1930, when they moved into their property on Garfield avenue. They continued to live in the Garfield avenue property until Mr. Sheetz' death in January, 1933, and Mrs. Sheetz continued to live there until August, 1933. In the meantime, at some date not stated, the daughter had married and she and her husband lived at some place apart from her parents. Also at sometime, perhaps while they were living at the Kansan Hotel, Mr. Sheetz made an optional contract of sale of the Garfield avenue property to a Mr. Testerman, who went into possession of the property under the contract, made the payments provided therein for a time, found he was unable to continue doing so, and surrendered the contract, but leased the property and occupied it under a lease for about a year. This time appears to have been up when Mr. and Mrs. Sheetz moved into the property in January, 1930. In the meantime, also, Mr. Barnett, to whom Mr. Sheetz had leased the Boswell property in December, 1926, and who had re-leased for another year, surrendered his lease in January, 1928. Mr. and Mrs. Sheetz then leased the property to a Mr. Gartner under a written lease beginning February 1, 1928. Mr. Gartner moved into the property and occupied it, under successive written leases from year to year, until August, 1933. While they were living at the Kansan Hotel, Mary J. Sheetz registered from that address as a voter in October, 1928, and voted in November of that year, and, while they were living in the Garfield avenue property, Mr. Sheetz registered as a voter from that address and voted in November, 1930, in March and April, 1931, and in August and November, 1932. On September 7, 1932, Isaac S. Sheetz conveyed the property on Boswell avenue to his wife, Mary J. Sheetz. The trial court found this conveyance was without consideration; that the grantee did not know of it until shortly prior to her husband's death; and that at the time it was executed Isaac S. Sheetz was insolvent and did not retain sufficient property to pay his creditors, among whom was the Citizens State Bank. On August 17, 1933, Mary J. Sheetz moved into the Boswell avenue property, and has resided there since.

On July 7, 1934, Margaret L. Waltz brought an action in the district court against Mary J. Sheetz for a money judgment, and on the trial of that action, in January, 1935, recovered judgment in the sum of $5,000, upon which an execution had been issued and returned unsatisfied. Two days after that action was brought, and on July 9, 1934, Mary J. Sheetz conveyed the Boswell avenue property to her daughter, Mary Mildred Blean. At the time that conveyance was made both the grantor and the grantee therein knew the action was pending. The conveyance was without consideration and was made with the intent of delaying, hindering, and defrauding Margaret L. Waltz in the enforcement of her claim. Mary J. Sheetz was then insolvent.

On November 21, 1932, Isaac S. Sheetz and Mary J. Sheetz executed their promissory note to the Citizens State Bank for $340, due in 90 days, and on December 18, 1932, they executed their note to the same bank for $975, due in 90 days. Both notes were renewals of previous notes executed by them to the bank for money the bank had loaned them. They were unpaid when Mr. Sheetz died in January, 1933. Isaac S. Sheetz left a will, by the terms of which his entire estate was given to his wife. This will was admitted to probate February 6, 1933, but no executor or administrator was then appointed. Upon the petition of the Citizens State Bank as a creditor a citation was issued to the widow and daughter to show cause why the estate should not be administered, as a result of which Mary J. Sheetz elected to administer, and on June 21, 1933, an order of appointment was made conditioned that she give bond in the sum of $1,000. She did not give this bond until January 26, 1934, when letters of administration were issued to her. Thereafter the bank filed its claim upon the notes, which claim was allowed on May 24, 1934; also the Citizens Investment Company filed a claim, which was allowed on the same date. Thereafter, and under proceedings which need not be detailed, Mary J. Sheetz was removed as administrator of the estate of her husband, and on the same date, April 27, 1935, John W. Lewis was duly appointed and qualified as administrator de bonis non of the estate of Isaac S. Sheetz.

After Margaret L. Waltz had recovered a personal judgment against Mary J. Sheetz in January, 1935, and an execution had been issued thereon and returned unsatisfied, appropriate proceedings were taken in the same action to subject the Boswell avenue property to the payment of that judgment. John W. Lewis, as administrator de bonis non of the estate of Isaac S. Sheetz, by leave of court, intervened in that proceeding and asked that the property be subjected to the payment of the debts allowed in the estate of Isaac S. Sheetz and the cost of administration. As previously stated, the principal defense of Mary J. Sheetz was that the Boswell property was her homestead, hence could not be taken for her...