Weaver's Estate, In re

• Court: Kansas Supreme Court
• Writing for the Court: WERTZ
• Citation: Weaver's Estate, In re, 262 P.2d 818, 175 Kan. 284 (Kan. 1953)
• Decision Date: 07 November 1953
• Docket Number: No. 39102,39102
• Parties: In re WEAVER'S ESTATE. WEAVER et al. v. WEAVER.

Page 818

262 P.2d 818

175 Kan. 284

In re WEAVER'S ESTATE WEAVER et al. v. WEAVER.

No. 39102.

Supreme Court of Kansas.

Nov. 7, 1953.

Rehearing Denied Dec. 18, 1953.

Syllabus by the Court.

1. Where an executor or administrator of an estate seeks to bring property of some sort into the estate, or otherwise realize something of benefit to the estate, the jurisdiction of such action is not in the probate court but in the district court or another court of competent jurisdiction.

2. The probate code, G.S.1949, chapter 59, does not authorize the personal representative of an estate to maintain an action in the probate court against an alleged debtor to collect assets of an estate in the hands of third persons.

3. The question of jurisdiction of the subject matter of an action may be raised at any time.

4. In any proceeding pending in the probate court when the jurisdiction of that court is challenged, it is the duty of the probate court to certify the question to the district court for decision. G.S.1949, 59-2402.

George L. Allred and Roscoe W. Graves, Emporia, argued the cause, and were on the briefs for appellants.

Samuel Mellinger, Emporia, argued the cause, and Clarence V. Beck and Earl B. Shurtz, Emporia, were with him on the briefs for appellee and cross-appellant.

WERTZ, Justice.

This is an appeal from certain orders of the district court, hereinafter discussed, quashing the service of process and dismissing a petition filed by the executors of an estate in the probate court to bring alleged assets into the estate, and other jurisdictional questions involved therein.

Louisa Weaver, a resident of Lyon county, died testate and her will was duly admitted to probate in that county. The deceased's sons Waldo O. and Glenn H. Weaver, who were the sole beneficiaries under the will, were appointed executors of her estate on January 17, 1949. On May 20, 1950, the executors filed in the probate court a petition against Alta Weaver (appellee), the estranged wife of Waldo Weaver, and daughter-in-law of the deceased. Their petition alleged four causes of action against Alta:

1. To recover various sums of money loaned, from time to time, by the deceased to her daughter-in-law, Alta Weaver.

2. In the alternative to recover the same money set out in the first cause of action, alleging it was fraudulently obtained from the deceased.

3. To recover real estate therein described, being the property of the deceased, title to which is fraudulently held by Alta Weaver.

4. To recover other real estate, the property of the deceased, title to which is fraudulently held by Alta Weaver.

The petition prayed that a citation issue to Alta Weaver, commanding her forthwith to appear before the court to be examined on and touching the matters contained in the petition. A citation was issued by the probate court directing Alta Weaver to appear and answer the executors' petition. She appeared specially and filed a motion to quash the alleged and pretended citation and notice of hearing on the petition to obtain possession of the alleged assets of the estate, and the pretended service of such notice upon her, and to strike the petition from the files, all for the reason that the probate court was without jurisdiction of either her person or the subject matter of the proceedings. The motion was heard and overruled by the probate court. From that order, Alta Weaver appealed to the district court where the matter was heard on December 21, 1950. Her motion was overruled as to the first cause of action, and sustained as to the remaining three, after which the district court certified its decision to the probate court.

On April 28, 1952, pursuant to the order of the district court, the executors filed an amended petition in the probate court, comprising two causes of action for the recovery of items mentioned in the first cause of action of the original petition. In their first cause of action, the executors alleged that Louisa Weaver in her lifetime made a loan of $5,000 to Alta Weaver to enable Alta to purchase certain described real estate; that executors made demand upon Alta for the repayment of the loan and she refused to pay it. The second cause of action alleged that Louisa Weaver made a loan to Alta, for the purpose of purchasing a life estate in certain described real estate; that the executors made a demand upon Alta for repayment of said sum and that she refused to pay. The prayer to both causes of action asked the probate court to issue citation directing Alta Weaver to appear and repay the loans alleged, as set forth in their amended petition. A citation and notice of hearing was issued, directed to Alta Weaver, commanding her to appear and repay the sums alleged to be owing to the estate. Alta Weaver again appeared specially and moved the court to quash the service and citation upon her, and to strike the amended petition, for the reason the probate court had no jurisdiction of her person or the subject matter of the proceedings. This motion was overruled by the probate court on June 7, 1952. From this order an appeal was taken to the district court on the jurisdictional question. At the time of filing the last mentioned appeal, Alta Weaver also filed a motion in the district court to vacate that part of the order of the district court entered November 29, 1950, overruling her motion to quash service of process, and strike the first cause of action set forth in the executors' original petition.

On August 20, 1952, the executors filed a motion to dismiss Alta's appeal from the order of the probate court overruling her motion to quash and to dismiss. The last three mentioned motions were duly presented to the district court, and on October 9, 1952, the trial court ordered that the executors' motion to dismiss Alta's appeal should be overruled, and that Alta's motion to vacate the judgment entered on November 29, 1950, should be overruled, and further ordered Alta's motion to set aside and quash the alleged and pretended notice of hearing and service of citation thereof, and to strike the executors' amended petition from the files, sustained.

The executors appeal from the order of the district court sustaining Alta Weaver's motion to quash notice and service of citation, and to strike the amended petition from the files, and in overruling their motion to dismiss Alta's Appeal to the district court. Alta Weaver cross-appealed from that part of the order of the district court refusing to vacate the judgment of that court, entered November 29, 1950, overruling their motion to quash the service of process applicable to the first cause of action set forth in the original petition.

The executors first contend, in substance, that the probate court has exclusive original jurisdiction to hear and determine liability in an action brought by them against an alleged debtor of an estate, and to reduce the same to judgment in the process of collecting assets of the estate in order to make final settlement and distribution among the heirs.

In their brief, the executors cite cases containing certain statements which, standing alone, would seem to support their contention. The broad language at times used in some of the cases which apply this principle may be somewhat misleading when isolated and read without regard to the facts of the case and questions then under consideration.

The rule may be stated that where a party seeks to get something out of an estate, the probate court has exclusive original jurisdiction, and in those cases wherein an executor or administrator seeks to bring property of some sort into the assets of the estate, or to otherwise realize something of benefit to the estate, it has been uniformly held that the action must be properly brought in the district court or other court of competent jurisdiction.

In the case of In re Estate of Thompson, 164 Kan. 518, 190 P.2d 879, the issue of jurisdiction as between the probate court and district court in certain actions, was classified into two classes and thoroughly discussed. First class--those cases in which the plaintiffs sought to get something out of the estate. Second class--those cases wherein an...