Earnest v. Ruppenthal

The opinion of the court was delivered by Wedell, J.: This is an appeal by a coadministrator from a judgment of the district court holding that a claim for a tombstone purchased by the coadministrator should have been allowed against the estate of the deceased by the probate court. The trial court made findings of fact which were as follows: “1. That James J. Earnest died intestate and a bachelor, a resident of Luray, Russell county, Kansas, on the 29th day of June, 1936; that he left surviving him as his sole and only heirs at law, thirty-nine collateral heirs, being nephews and nieces, and grandnephews and grandnieces of the deceased, the parents and brothers and sisters of said James J. Earnest having preceded him in death. Three of these heirs a one-eighteenth interest in said estate; four a one twenty-fourth interest, six a one thirty-sixth interest; six a one forty-second interest; eight a one forty-eighth interest; ten a one-sixtieth interest and two a one eighty-fourth interest. "2. That on the 3d day of July, 1936, Viola W. Ruppenthal, one of the heirs, was duly appointed and qualified as the administratrix of said estate; that thereafter, and on July 10, 1936, a motion was filed by W. A. Earnest and other heirs of said estate, praying for the removal of Viola W. Ruppenthal as administratrix of said estate, and that upon hearing of said motion on the 29th day of July, 1936, J. G. Earnest, also an heir of said estate, was appointed [637] by the court and duly qualified as coadministrator of said estate, and that thereafter said estate was administered jointly by Viola W. Ruppenthal and J. G. Earnest. “3. On the 24th day of July, 1937, before the closing of said estate and before any application therefor had been made to the court, W. A. Earnest, one of the heirs of said estate, filed a petition alleging that the administrators of said estate had neglected or refused to erect a suitable marker or memorial at the grave of James J. Earnest, deceased; that there were sufficient assets in the hands of the administrators to provide or purchase such marker or memorial, and that the probate court should set aside a sum of money from the funds then in the hands of the administrators, in a sum not less than $300 or more than $500 for such purpose. “4. Final report of personal estate was filed in probate court September 21, 1937, with detailed account, praying for approval, finding of heirs, and order of distribution and discharge. Notice was duly published four weeks; setting October 22, 1937, as date of hearing. Hearing was by the court passed over to October 23, 1937, when both administrators and counsel for each were present. “5. On October 23, 1937, said final report and petition for hearing before the probate court, the court approved the report as filed, determined the compensations, expenses and attorneys’ fees of the administrators, found the heirs of said deceased, ordered the distribution of the net proceeds of the estate, amounting to $3,762.43, to the several heirs and discharged the administrators from further liability upon the filing of all vouchers for distribution to the heirs of said estate. Receipts from the administrators, their attorneys, and by the probate court for fees, were promptly filed. It appears that the receipt or vouchers from the heirs have not been filed. “6. On October 23, 1937, the petition of W. A. Earnest, as mentioned in finding No. 3, came on for hearing before the probate court, the petitioner not being present or having notice of said hearing, and was by said court overruled. Upon reconsideration by the probate court on October 26, 1937 (W. A. Earnest being then present in person and by counsel), it was again overruled, from which later ruling said petitioner, on November 5, 1937, appealed to this court; said appeal also covered the order of the probate court directing the payment of legacies and ordering distribution. “7. That on the 28th day of March, 1938, J. G. Earnest, as administrator of said estate, entered into a contract with Fred G. Stambach, of Osborne, Kan., for the purchase of a tombstone to be erected at the grave of James J. Earnest, deceased, at and for a total purchase price of $200; that on April 11, 1938, Fred G. Stambach filed his claim with the probate court of Russell county, Kansas, in the amount of $200 plus $4 sales tax, being the purchase price of one granite monument, previously contracted for by J. G. Earnest, administrator, which said claim was disallowed by the probate court on April 25, 1938. “The claim filed by Fred G. Stambach was not verified as required by G. S. 22-709, but at the trial in this court (on-appeal), said claimant appeared personally and testified as to the matters covered by this section. (Dubbs v. Haworth, 102 Kan. 603, 606.) The court finds that at the time of presentation and hearing of this claim of F. G. Stambach in the probate court, no monument [638] had been erected by him at the grave of the deceased, but the amount thereof had been determined through the order of J. G. Earnest, administrator, and said monument was erected during the last week of May, 1938. “8. Thereafter, and on the 23d day of May, 1938, J. G. Earnest, coadmin-istrator of said estate, and Fred G. Stambach, claimant, each appealed to the district court of Russell county, Kansas, from the order of the probate court, made on April 25, 1938, disallowing the Fred G. Stambach claim. “9. That a majority of the heirs of James J. Earnest, deceased, have expressed themselves, both orally and in writing, as being in favor of the purchase of some suitable marker or memorial, to be erected at the grave of James J. Earnest, deceased; that the only opposition to the purchase of such marker, in either the probate court or the trial of this case in the district court, was Viola ,W. Ruppenthal, as coadministrator of said estate, and that none of the other heirs of said estate appeared at either of said hearings, for the purpose of contesting or making objections to such purchase. (That the expression of all but two or three of said heirs favorable to the purchase of a monument was made after the hearing on the petition of W. A. Earnest in the probate court on October 26, 1937.) 'TO. That there is now in the hands of the coadministrators of said estate, and was on October 23, 1937, after the payment of all debts, charges and costs of administration, including attorneys’ fees, and fees and expenses of the co-administrators, the sum of 83,762.43, for distribution to the heirs of said estate. “11. That the tombstone purchased by J. G. Earnest, administrator, was erected at the grave of James J. Earnest, deceased, by Fred G. Stambach, a few days prior to May 30, 1938, and that the claim of Fred G. Stambach for the purchase price of said monument is just, due, and remains unpaid; that there is due and owing to said Fred G. Stambach from the estate of James J. Earnest, deceased, the sum of $204, after the allowance of all payments and offsets. “12. W. A. Earnest, nephew, appellant, caused deceased to be buried in Cheyenne cemetery, Osborne county, about ten miles from Luray, and the expense was later paid from the estate at $516.35, including $390 casket and $100 steel box. “13. After the probate court’s ruling adverse to a memorial and after announcement at time of such ruling, of unwillingness of W. A. Earnest to consent to a memorial at less than $300 and after notice of appeal by W. A. Earnest and J. G. Earnest personally and as administrator were filed in November, 1937, the administratrix, Viola W. Ruppenthal, wrote most of the heirs to see whether they would severally make a contribution to be taken from their distributive shares and applied to pay on a tombstone. The probate court’s rulings in October, 1937, had indicated that the court believed that no power existed, at least not without general consent of all heirs or substantially such consent, to provide a memorial at all to an intestate, and that had such power existed it was too late, as one year had elapsed from death and from appointment of administratrix and from notice of her appointment. “14. About the third week of November, 1937, somewhat more than twenty heirs informed the administratrix that they severally would contribute $5 from their shares — some adding strongly ‘No more.’ Besides these, two or three [639] more spoke favorably to J. G. Earnest, but without setting the amount, or whether to be paid by them from their shares or to be allowed by the court. No adjustment was reached between the administratrix and the several appellants, despite these efforts. “15. The cost of the monument erected at the grave of said deceased is a reasonable expense for the purpose of marking the grave, considering the financial condition of his estate.” The court made conclusions of law covering numerous contentions on legal questions presented by tli.e parties. In view of the conclusion we have reached, it will be necessary to consider only one question. That question is whether an administrator, in the absence of testamentary direction, has the right or authority to purchase a tombstone for the grave of the deceased where none has been provided at the time fixed for the final settlement of a solvent estate. We think the question should be answered in the negative. An administrator ordinarily cannot bind the estate of a decedent by a contract which creates a liability not founded upon an obligation of the deceased. Nor do we find in the statutes of this state any authorization for the creation of such liability. We are reminded this court in Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147, said: “The statute gives funeral expenses priority over all other demands against the estate of the decedent. (Gen. Stat. 1909, § 3515.) ‘The expense of erecting a suitable monument over the grave of deceased is to be classed among the funeral expenses.’ (4 Words & Phrases, p. 3008.)” (p.394.) In that case the will expressly provided for the erection of a tombstone. We do not think a monument or tombstone constitutes such a part of th'e funeral expenses of the deceased, if in fact any part thereof, as an administrator is authorized to incur. (Morgan v. Morgan, 83 Ill. 196; Bauerle v. Long, 187 Ill. 475; De Proft v. Heydecker, 297 Ill. 541; In re Estate of Way, 242 Ill. App. 459.) In the last case cited it was held: “Executrix cannot bind the estate by contract creating a liability not founded on an obligation of the testator.” (Syl. ¶ 2.) The deceased died intestate. During his lifetime he made no provision for the erection of a tombstone. If the collateral heirs who will inherit his property, or others, are desirous of purchasing a tombstone out of their own funds, they are, of course, at liberty to do so, but the coadministrator was without right or authority to create a liability against the estate of the deceased for that purpose. The appellant, Viola W. Ruppenthal, coadministrator, has requested a declaratory ruling on the question of whether G. S. 1935, [640] 60-3327, is applicable to appeals to the supreme court by an administrator, and if so, whether that statute supersedes G. S. 1935, 60-3826, subdivision two, pertaining to the docketing of appeals in this court and eliminates the necessity of a docketing fee. No actual controversy on such questions appears to have been raised in the instant case and we shall not rule upon them now. The judgment is reversed.