The Commercial State Bank of Waverly, Appellant, v. Letitia C. Ross, as Executrix, etc., Appellee

Kansas Supreme Court1913-07-05No. No. 18,365

90 Kan. 423

Summary · law.co

Holding. The probate court had authority to correct its inadvertent error in classifying claims, and such correction was permissible even after initial approval. The judgment is modified and remanded to the district court to take evidence as necessary to determine the proper classification of each disputed claim and conform the final order accordingly.

George W. Ross died in 1909, and his executrix filed a report showing the estate insolvent with all assets exhausted. The Commercial State Bank, a general creditor, challenged the report and sought to disallow certain payments to create funds for its claim. The probate court initially classified certain claims in the fifth class but later reclassified them as second-class claims before approving the report, which resulted in denying the bank relief.

The bank appealed, arguing that the initial classification was a final judgment that could not be changed. The court held that probate courts have authority to correct inadvertent errors in claim classification under the applicable statute, even after the initial classification, because justice requires such corrections. The court approved this principle but found the record insufficient to determine whether the reclassified claims actually belonged in the second or fifth class.

The court also addressed the executrix's payment of small claims without required affidavits, finding such payments irregular but not grounds to disallow reimbursement if the claims were valid, which appeared to be the case.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a probate court may correct an inadvertent misclassification of estate claims after initial approval
The proper class rating for specific claims against an insolvent estate
Whether irregular payment procedures for small claims without affidavits invalidates the executrix's account

Procedural posture

The case was appealed from the district court, which had affirmed the probate court's approval of the executrix's report with reclassified claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

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 v. Rhea, 82 Kan. 109, 107 Pac. 799, 136 Am. St. Rep. 100, 29 L. R. A., n. s., 930, 20 A. & E. Ann. Cas. 43). The provision applies equally to the probate court. (Civ. Code, § 605; Wolfley v. McPherson, 61 Kan. 492, 495, 59 Pac. 1054.) Therefore, if by inadvertence a demand was assigned to a lower class than that to which it rightfully belonged, the probate court had jurisdiction to correct the error even at a subsequent term, and justice required such correction to be made.

Whether the disputed claims in fact belongéd in the second or in the fifth class is a question which has not been argued in this court, and which therefore we are not in a position to decide. The largest of the claims, however, appears to have been one presented by the First National Bank of Waverly, based upon a note executed to it by the testator May 20, 1909. The executrix stated that this claim, with others, was for the doctor’s bill. Probably her meaning was that the money borrowed from the bank by the decedent was used to pay the doctor, but this would not give any preference to the bank’s claim against the estate upon the note. The ruling upholding the authority of the probate court to correct errors in the classification of claims is approved, but owing to the condition noted the cause will be remanded with directions that the district court take whatever evidence may be necessary to determine to which class each of the claims in fact belongs, and conform the final order to. such determination.

The appellant also complains that in a number of instances a claim of less than fifty dollars was allowed and-paid by the executrix without an affidavit of its correctness having been made as required by law. (Gen. Stat. 1909, § 3525.) Such allowance and payment was irregular, but not important in an attack upon the account of the executrix, if the claims were in fact just, which seems to have been the case. An executor or administrator who pays a valid demand against the estate is entitled to reimbursement out of its funds. (18 Cyc. 570.)

The judgment is modified as indicated.