The opinion of the court was delivered by
This was a proceeding by two heirs of a deceased to revive two judgments rendered in separate actions in favor of the deceased during his lifetime. The district court denied the motion to revive the judgments pursuant to objections of another heir, Ludvik Zaloudek, a brother of the deceased, and Mary Zaloudek, who were the judgment debtors.
No will of the deceased had been admitted to probate and no administration was had on decedent's estate; decedent's only heirs at law were the petitioner, Edward Zaloudek, Ludvik Zaloudek, both brothers of the decedent, and Frances Halstenrud, Helen Thielen and Blanche Howard, all nieces of the decedent; the decedent was the owner of an undivided one half interest in lots in the city of Wilson, Ellsworth county, (describing them); the petitioner had an interest in that real estate, was entitled to have the descent thereof determined and he claimed full title thereto under a deed of conveyance; the real estate, subject to any prior lawful disposition thereof made, should be assigned to and be vested in the only heirs of the decedent, as follows: A one fourth interest in each of the two brothers and in Frances Halstenrud and a one eighth interest in each of the other two nieces; all other real estate owned by the decedent descended to and should be assigned to the persons previously named in the fractional interests indicated.
The probate court found: The decedent died intestate; no administration had been had on his estate in Kansas; the deed from the decedent to his brother, Edward, was filed for record after decedent's death; any real estate owned by the decedent at his death was inherited by and descended to the heirs named in the fractional interests previously stated.
The instant motions for revivor of judgments were filed in the district court by two nieces, Helen Thielen and Blanche Howard in each of the cases in which the judgments had been rendered against decedent's brother, Ludvik Zaloudek, and Mary Zaloudek. Although we are told no record was made of the hearing on the motions to revive, there seems to be no dispute that all the facts previously stated herein were before the district court when it ruled on the revivor motions. The motions to revive contained most if not all of them. The two movants sought to have the judgments revived to the extent of an undivided one eighth interest in each of them as heirs at law.
We are informed that after a denial of the motions to revive the judgments appellants instituted proceedings in the probate court
It appears Ludvik Zaloudek and Mary Zaloudek, the judgment debtors, were the only interested parties who were notified of the revivor proceedings. They objected to the revivor on the grounds the two heirs, Helen Thielen and Blanche Howard, were not proper parties to move for the revivor and had no legal capacity to conduct the proceedings. The district court sustained the motion. From that ruling the movants for revivor appeal.
Before determining whether the district court erred in denying the motions to revive the judgments we desire to revert for a moment to the petition filed in the probate court by Edward, one of the brothers of the decedent, to obtain a decree of descent under provisions of G.S. 1949, 59-2250; 59-2251. The claim Edward made therein to certain lots by virtue of a deed of conveyance had no place in a petition for a decree of descent. The function of such a decree is not to determine controverted issues of title to or ownership in property of a decedent's estate. In Jardon v. Price, 163 Kan. 294, 181 P.2d 469, we said:
To the same effect is also Wright v. Rogers, 167 Kan. 297, 301, 205 P.2d 1010.
In the instant case the probate court, however, appears not to have determined the ownership or title in and to the lots claimed by Edward, decedent's brother. The court found the deed to those lots was delivered after the decedent's death and it determined only the fractional interests of the respective heirs to real estate owned by the decedent at the time of his death.
Appellants support their motion to revive the judgment on the
Appellees contend it is plain the descent decree did not assign to four of the heirs any interest in the judgments of the decedent against the fifth heir and contend further that if the descent decree had made such assignment, a judgment could not be subdivided by part owners for the purpose of collection or revival; that a judgment must be revived in whole or not at all. Appellees make other contentions in support of the trial court's ruling. They may well be involved in the proceedings to obtain administration on decedent's estate. We shall not pursue those contentions presently.
Appellees contend an administrator was the proper party to revive the judgments. Appellants contend the heirs may do so under the provisions of G.S. 1949, 60-3220, which reads:
G.S. 1949, 60-3212 provides:
G.S. 1949, 60-3221 provides:
These judgments had become dormant as a result of decedent's death. If the decedent had died before the judgments were rendered
We think under the undisputed facts of the record in the instant case a personal representative of the decedent was the proper party to revive the judgments. (Howe v. Mohl, supra.) No personal representative had been appointed and, of course, no such representative attempted to revive the judgments. How late such a representative might be appointed or whether there are now valid defenses to a revivor in his name are questions not presently before us.
The order denying revivor is affirmed.