Collins v. Sword

MARKS, J.

Richard J. and Honora H. Collins were married on November 25, 1885. At that time Mr. Collins had separate property of the value of about $14,000 and Mrs. Collins had nothing. Mrs. Collins died intestate' on May 5, 1929. During the period of coverture considerable property was acquired which consisted of real estate, notes, mortgages and money in bank. Titles to some of the real estate stood in their names jointly, some in the name of Mrs. Collins, and others in the name of Mr. Collins. Some notes and mortgages were payable to the one and some to the other. Each had separate bank accounts.

After the death of Mrs. Collins a petition for letters of administration was filed by Mr. Collins in which the real and personal property standing in her name was described and given a value of about $40,000. Before this petition was acted upon Mr. Collins nominated Mae A. Sword to act with him as administratrix of the estate and a petition for their appointments was filed. Mr. Collins signed both petitions. They were appointed and qualified as administrator and administratrix of the estate and jointly entered upon the discharge of their duties. Letters of administration were issued to them on June 11, 1929. They caused an inventory and appraisement of the property of the estate to be filed. The property here in question was specifically listed as belonging to the estate of Mrs. Collins and was given an appraised value of $73,538.10. Both Mr. Collins and Mae A. Sword executed the affidavit usually attached to inventories and appraisements. They gave notice to creditors, approved claims, petitioned for authority to lease real estate and sell real and personal property and paid the inheritance tax.

On November 7, 1930, Mr. Collins filed his verified petition for discharge as administrator and a “Declaration of

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Disability” in which he stated that he had exercised his right to declare the real and personal property of the estate, community property, and proposed to file an action to have the property of the estate declared to be his property because of its former community status. On December 3, 1930, it was ordered that the resignation be accepted

nunc pro tunc

as of June 23, 1930. This action was filed June 16, 1930.