Allen v. Bartlett

The opinion of the court was delivered by AlleN, J.: This case was tried on the following agreed statement of facts: “1. John Brown died August 1, 1882. “ 2. Henry Brown was appointed administrator of the estate of John Brown September 22, 1882, and gave bond as such administrator on the same day. “3. Henry Brown, as such administrator, filed an inventory of the personal property belonging to said estate of said John Brown coming into his hands October 3, 1882, which showed $1,885.50 of the said estate, and coming into his hands as administrator. “ 4. Henry Brown, as such administrator, never afterward filed any statement or annual account of his acts and doings in and about the administration of said estate, and never made any annual or final settlement of any kind or character of said estate. “5. Said Henry Brown died January, 1889, and Sarah A. Brown and J. D. Allen were appointed administrators of the estate of Henry Brown, deceased, January 25, 1889. “6. On May 2, 1889, C. L. Bartlett was appointed administrator of the estate of John Brown, deceased. “7. On August 8, 1889, said C. L. Bartlett, as such ad [390] ministrator, filed the account here in controversy, .claiming $2,472.56 in favor of the estate of John Brown, deceased. “8. The administrators of the estate of Henry Brown, deceased, interposed as plea thereto the statute of limitation, claiming that said demand was barred thereby.” The court found in favor of the plaintiff, and rendered a judgment accordingly. The defendant brings the case here for review. Counsel for plaintiff in error discuss in their brief the question whether the administrator de bonis non can recover from the administrator of his deceased predecessor anything more than that portion of the estate which still remained unadmin-istered in the hands of the former administrator at the time of his death, and contend that any portion of the assets of the estate which he had sold and converted to his own use could not be recovered by the administrator de bonis non. The principal portion of counsels’ brief is devoted to a citation and discussion of authorities on this question. On the other hand, counsel for the defendant in error suggests that the record fails to present any such question; that the sole point relied on in the trial court was the statute of limitations. On inspection of the record, we find this contention sustained. The administrator de bonis non filed in the probate court an account against the estate of the former administrator, claiming the balance on the inventory, as shown by the report of the former administrator, and interest thereon. This account was duly verified. There is absolutely nothing in the record showing what the property was, nor when it was disposed of, if ever, nor what was done with the proceeds. For anything disclosed by the record, it might be that the administrator of his estate had the specific funds derived from the sale of the property. It is therefore not necessary to consider the question most discussed. The only other question to be considered is, as to whether the action was barred by the statute of limitations. It is contended that when Henry Brown, administrator of the estate of John Brown, deceased, failed to make a settlement [391] within the time prescribed by law, or within a reasonable time thereafter, without rendering any excuse therefor, the law presumes the conversion of the funds, and the statute of limitations begins to run from the time of such failure. It is quite a startling proposition that mere neglect to perform the official duty of rendering accounts at the time required by law to the probate court will be deemed a conversion of the trust funds in the hands of the executor or administrator, so as to start the running of the statute of limitations. We think it very clear that the statute of limitations would not begin to run in favor of the administrator until he had done some unequivocal act showing the intention on his part to repudiate his trust and claim the funds as his own. It is well settled that no statute of limitations runs against the beneficiaries to a trust fund so long as the trustee continues to recognize their rights. A failure to perform an official duty at the precise time required by law is not necessarily any evidence — much less conclusive evidence — of a purpose to wrongfully convert and misapply trust funds. (Perry v. Smith, 31 Kas. 423; Perry, Trusts, §864.) We do not think the case of Carr v. Qatlin, 13 Kas. 394, at all in conflict with our views above expressed. The judgment is affirmed. All the Justices concurring.