The opinion
OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
Graves, J.:
A petition for a rehearing has been filed in this case which criticizes the court for overlooking questions which the plaintiff in error deems important and controlling in the case. One of the chief questions discussed by the plaintiff in error was.that the appointment of an administrator in this case was imperative because there were debts outstanding against the estate. It appears from the facts contained in the statement of the case, however, that the only debts were a few of very small amounts, and one for $1600, due to the widow for cash of hers loaned by the intestate, who took the notes therefor in his own name. This debt was immediately extinguished by giving to her notes in that amount from those belonging to the estate. To this adjustment every person who could object consented, and has ever since acquiesced therein.
This suit was commenced eleven years after the settlement by the heirs. The plaintiff in error, who objects to this adjustment, is a stranger to the estate and has no interest in its settlement except to protect himself' from double payment of his debt. The danger *110 in this respect, of which he seems apprehensive, is that an administrator may yet be appointed who will ignore the adjustment of affairs made by the heirs and proceed to collect the assets and administer the estate the same as if the appointment had been made immediately after the death of the intestate, or that the minor heir, who could not consent, may repudiate the settlement and insist upon a different division of the estate. This apprehension seems to be without foundation and purely fanciful. There are no creditors who can obtain the appointment of an administrator; there are no scattered assets to be collected and preserved; there is no disagreement among the heirs; and therefore no necessity for an administrator exists. If there are creditors, their claims have long been barred by the statute of limitations. Where the parties immediately interested in an estate fail to have an administrator appointed within the time fixed by the statute, then any creditor may cause one to be appointed, and from the time when such an appointment could have been made the three-year statute of limitation begins to run against the creditors, whether an appointment is made or not. (Bauserman v. Charlott, 46 Kan. 480 , 26 Pac. 1061 .)
The heirs, having participated in this settlement, are estopped from denying its validity. The minor heir was fourteen years of age when the settlement was made. His guardian participated in the division of the assets, and received the share allotted to his ward. This suit was commenced four years after the minor heir had reached the age of majority, and he still retained the property received by him and was satisfied therewith. The age of this minor is not shown in. the findings of fact, but is given in the testimony of his uncle, who fixes it as here stated.
The legal status’of the estate has been considered as of the time when this suit was commenced, rather than of the date when the estate was settled. If the objections and arguments now presented by the plaintiff in *111 error had been made at or near the time when the heirs divided the estate, the conditions which now exist might have been' avoided; but after the lapse of eleven years, during which time the right of all interested parties to question the proceedings has become barfed by limitation and estoppel, such objections do not seem sufficient to justify the disturbance _ of the property rights now dependent thereon. No right is injured by the present situation. The .plaintiff in error can pay his note with safety. He has no cause to complain of what the heirs have done.
The petition for a rehearing is denied.