Wollard v. Peterson

• Decision Date: 11 April 1936
• Docket Number: 32621.
• Parties: WOLLARD v. PETERSON et al. [*]
• Court: Kansas Supreme Court

56 P.2d 476

143 Kan. 566

WOLLARD v. PETERSON et al. ^[*]

No. 32621.

Supreme Court of Kansas

April 11, 1936

Syllabus by the Court.

Appeal held not dismissible for want of jurisdiction because proof of service of notice of appeal was not made by affidavit as provided by statute, but by acknowledgment of attorneys and their waiver of proof by affidavit (Rev.St.1923, 60--3306).

Where testimony in case tried before court was mostly documentary and oral evidence was uncontradicted, both facts and law were reviewable as against contention that reviewing court could not interfere with inferences imported by court's general finding.

Recovery could be had on administrator's bond where administrator was appointed administrator with will annexed after nuncupative will was probated without being required to turn over assets of estate to himself as administrator with will annexed, or to execute new bond, since duties and responsibilities of office were not increased and burden on bondsmen was not changed (Rev.St.1923, 22--309, 22--325).

Administrator de bonis non held not estopped to site on bond of administrator, who was subsequently appointed administrator with will annexed without being required to execute new bond because of actions by residuary legatees against defendant as administrator with will annexed, which were dismissed (Rev.St.1923, 22--309, 22--325).

Action on administrator's bond held not barred by limitations within two years, since action was on contract and not in tort (Rev. St.1923, 60--3306).

Administrator de bonis non could sue on bond of former administrator (Rev.St.1923, 22--730, 22--1002 to 22--1004).

The proceedings and documentary evidence considered, and it is held, that the evidence does not sustain the judgment rendered in favor of the defendant, but will support a judgment in favor of plaintiff against both defendants.

Appeal from District Court, Wyandotte County, division No. 2; Willard M. Benton, Judge.

Action by N. J. Wollard, administrator de bonis non of the estate of Charles Wauch, deceased, against Claude L. Peterson and another. From a judgment for defendants, plaintiff appeals.

Reversed and remanded, with instructions.

E. E Martin, of Kansas City, for appellant.

Fred Robertson, Edw. M. Boddington, and J. O. Emerson, all of Kansas City, for appellee Fidelity & Casualty Co. of New York.

L. R Gates, of Kansas City, for appellee Claude L. Peterson.

HUTCHISON Justice.

The appeal in this case is by the plaintiff from a judgment rendered by the trial court in favor of the defendant in an action brought by plaintiff as administrator de bonis non of the estate of Charles Wauch, deceased, against his predecessor, Claude L. Peterson, and his bondsman, the Fidelity & Casualty Company of New York, for the sum of $4,033.57, with interest thereon, together with the sum of $1,500 cost and expense to the administrator de bonis non in collecting the same.

The petition in this case is the third amended petition, and it alleges the appointment of Claude L. Peterson as administrator of said estate on August 1, 1928, on which date he furnished and filed a bond as administrator, signed by the Fidelity & Casualty Company of New York, in the sum of $500. Two days later after filing an inventory he filed another bond signed by the same company for $9,500, thus making a total bonded security of $10,000.

The petition alleges the filing of a final account on which an order was made by the probate court. That later complaint was made to the probate court that the administrator had failed to pay the creditors and others entitled to the sums stated in the account and order of the court, and after due notice and opportunity for hearing the said Claude L. Peterson was removed and a copy of the order of removal was sent to the Fidelity & Casualty Company, his surety, and the plaintiff was appointed as his successor.

The petition further alleges that during the administration of Peterson a nuncupative or oral will of the deceased was admitted to probate, and the probate court did order and direct said Peterson be not discharged but continue to act as administrator. That he did distribute to one party according to the terms of the order the sum of $2,000. That by reason of the admission of said will to probate and the order that the said Peterson should continue as the administrator of said estate with the will annexed, he was thereafter referred to as administrator with the will annexed, but he never filed any pleadings, report, or document in said court or cause except as "administrator," and that he held the assets of the estate by virtue of his trust as an administrator. The petition further alleges that no additional responsibility was thrust upon him; that he continued to administer the same assets and to pay the premiums on said bonds to the casualty company. The petition further alleges that the plaintiff has demanded of both Peterson and his bondsmen the assets of the estate and has failed to receive them and that plaintiff has no plain, adequate, and complete remedy in the probate court. Attached to the petition are the copies of the two bonds and other documents mentioned in the petition.

Separate answers, which are substantially the same, were filed by Peterson and the casualty company. The answers first admit and call attention to the language of certain exhibits attached to the third amended petition where Peterson is mentioned in different documents and proceedings as administrator with the will annexed, and particularly refer to the following language in the order of the probate court when the oral will was admitted to probate, "and that Claude L. Peterson continue as administrator of said estate with the will annexed," and defendants admit that said Peterson did continue after such order to act as administrator of said estate with the will annexed under the trust conferred upon him by such order and did pay to Jennie Stempski the sum of $2,000.

The answers contain general denials and a number of special denials and allegations, among which are that the assets of the estate of which Peterson was the administrator were all paid out by him under orders of the probate court or turned over to his successor in office, Claude L. Peterson, administrator with the will annexed, immediately after the appointment of said administrator with the will annexed. That plaintiff's cause of action is barred by the five, three, and two year statutes of limitations (Rev.St.1923, 60--306). That the residuary legatees under the will of the deceased prepared and filed two actions in the probate court and one in the district court against Peterson and his bondsmen to recover the amount they claimed to be due them under the order of the probate court, and that said actions are still pending and undetermined. That in said actions and in a number of other papers and documents in connection with said estate the administrator is referred to as the administrator with the will annexed. That in the written demand served on Peterson by the plaintiff before bringing this action he is referred to as formerly administrator with the will annexed. The prayer is that this action be abated its to the amounts due the residuary legatees because of their former actions, that the action be barred by the statutes of limitations, and the plaintiff be estopped from claiming Peterson was not administrator with the will annexed, and from claiming the assets were in the hands of any one else than Peterson as administrator with the will annexed, that the residuary legatees he adjudged to have made an election that the amounts due them were from Peterson as administrator with the will annexed, and that the plaintiff has no legal or equitable interest in any of the money ordered to be paid to them, and that defendants recover their costs herein. Both answers were verified by an attorney.

A separate reply was filed to each answer consisting of a general denial and special denials as to the correctness of the statements made in the answers concerning the pleadings and proceedings had in the estate matters and as to any request, demand, or order removing Peterson as administrator and appointing him as administrator with the will annexed when the will was admitted to probate, that defendant Peterson and his bondsmen are estopped from so claiming without such an order, and that if Peterson did pay all the assets over to himself as administrator with the will annexed it was fraudulently concealed from the probate court and in violation of the terms of his bonds.

The case was tried to the court without a jury. No findings of fact nor conclusions of law were made. The following is the finding in the journal entry of judgment: "*** and now on this 29th day of May, 1935, the court having heard the evidence and arguments of counsel and being fully advised in the premises, finds for the defendants and against the plaintiff."

The evidence was all documentary except the oral testimony of three witnesses. The plaintiff testified as to the making of an oral and written demand upon Peterson, and while there was an objection to it there was no oral evidence contradicting or modifying it. The plaintiff also testified as to having received after his appointment 4 1/2 shares of building and loan stock from Mr. Brown, an attorney for some of the residuary legatees. This was not contradicted. Plaintiff also testified as to the amount in his judgment of a reasonable attorney fee for plaintiff's attorney and the approximate expense of the suit. Hugh E. Brownfield, an attorney testified as to the amount of a reasonable attorney fee for plaintiff's attorney in this case. This was all the testimony as to a reasonable attorney fee. Mr. Gates testified that he...