137 P. 381 | Mont. | 1913
delivered the opinion of the court.
Dr. Gideon E. Blackburn, of Butte, died intestate on March 24, 1912, leaving some estate, and surviving heirs as follows: Hannah A. Blackburn, his wife, Charles A. Blackburn, a son, and two daughters- On March 29, 1912, Charles A. Blackburn filed in the district court of Silver Bow county a petition for letters of administration of the estate, and also filed a writing signed by the widow, wherein she formally waived her right to such letters and requested his appointment. In the petition it is recited that the estate and effects in respect of which letters of administration are asked do not exceed the value of $5,000, and that it consists of office and household furniture, libraries, book accounts, and miscellaneous stocks and bonds .of unknown value. The petition came on for hearing in due course, and at the hearing the petitioner testified that, so far as he then knew, the value of the estate was not to exceed $5,000; of this, $2,900 was cash, the remainder being stocks, bonds, and other interests.
To the petition of the widow two answers were filed: One by the administrator, and the other by H. L. Maury on behalf of Daisy I. O’Neill and Sister M. Florentia, the daughters of deceased; the answer of the daughters, praying “that no relief be granted to Mrs. Hannah A. Blackburn,” denies generally the allegations of her petition,.including her widowhood; denies that the watch and glasses are of any value; alleges that she is not related to them, and that their mother is still alive. The answer of the administrator puts in issue the widowhood of the petitioner ; explains the omission of the watch and glasses from tb*e 'irst inventory; denies the charges of fraud, waste, or intent -ijvolve the estate in unnecessary litigation, or that^v irrigation lie bring will be in bad faith; and allege- that any claim he\may assert or attempt to enforce will be under the permission of .^e court, for the sole use and benefit oí the estate. By way of fu.,. ther answer the administrator pleads the waiver and request.' executed by the widow, and alleges that in consequence thereof,
In reply to the answer of the administrator, the widow admits the execution of the waiver and request filed March 29,1912, and alleges that the same was made by her “upon the solicitations of Charles A. Blackburn and the advices of John 6. Brown, his attorney, and the representations of friendliness on the part of the said Charles A. Blackburn” toward her, and that since the issuance of letters of administration to him, he has become and now is hostile to her and to the best interests of the estate “and dishonest and untrustworthy, as more fully appears from the petition herein on file.” The matter was heard before the district court of Silver Bow county, the Honorable Jeremiah J. Lynch, judge presiding; and, upon the proceedings had, including the testimony taken, an order was made by which the petition of the widow was denied and the proceeding dismissed. From that order this appeal is taken.
The appellant contends that the petition should have been granted, because the widow is vested by the statute with a prior right to administer her late husband’s estate, which cannot be affected by her renunciation; because the circumstances under which the administrator secured her renunciation were such that it ought not be held effective in view of his present attitude toward her interests, and because the evidence establishes that he is not a fit and proper person to have control of the estate.
1. The position that the widow is entitled, notwithstanding
“Administration of estate of all persons dying intestate must be granted to some one or more of the persons hereinafter mentioned, * * * in the following order: 1.'The surviving husband or wife, or some competent person whom he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers. 5. The. sisters. * * * ” (Sec. 7432, Bev. Codes.) “Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuance of letters to themselves” (see. 7444); but when letters have been granted to any other person than the surviving spouse, child, parent, brother, or sister, “any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration” by presenting to the court an appropriate petition (see. 7447), on which a citation to the administrator shall issue (sec. 7448), and a hearing be had (sec. 7449). “The surviving husband or wife, when letters of administration have been granted to a child, father, brother or sister of the intestate; or any of such relatives, when letters have been granted to any other of them, may assert his prior right and obtain letters of administration and have letters before granted revoked in the same manner prescribed in the three preceding sections. ” (Sec. 7450.) The primary purpose of these provisions is, of course, to confer a
2. It is, however, the policy of our law that the widow shall
The voluminous record before us tends to show that the claim asserted by the widow to certain stocks, bonds, and real estate which were not mentioned in the petition for letters, but which have been listed in the inventory, is not wholly baseless. The evidence bearing upon the attitude of the administrator
The testimony of the administrator is as remarkable for what it does not contain as for what it does contain. On direct examination he gave no testimony in denial of the foregoing or concerning his attitude before and after administration, touching her and her claims, except that he had consulted counsel regarding the stocks, bonds, and real estate, and had listed them as the property of the estate on the advice of counsel. He also said: “I first knew the deeds had been destroyed when the matter was testified to here in court. * * * I can’t recall whether Mrs. Blackburn told me she was going to destroy them; my recollection is that she did tell me that her intention was to destroy them.” On cross-examination he said he could not tell when he first consulted counsel about the real estate, except that it was after his appointment. “I did not tell him about those deeds in the bank and their removal by Mrs. Blackburn before I petitioned for letters of administration. I knew about those deeds before I petitioned for letters of administration, but did not disclose the fact to my counsel. I don’t know why I didn’t, but it probably escaped me. I don’t know whether I
Counsel insist that the zeal of the administrator in getting together all the property of the estate is no fault or ground for removal. Assuredly not, but that is beside the mark. The question is whether the waiver of the widow and her request for his appointment was fairly procured and freely given. We think her testimony shows that it was not, and his serves only to confirm that impression. He received her consent to the administration by him of an estate of, a certain character, estimated at not to exceed $5,000 in value, and which did not claim any of the property in dispute; she never did consent that he should administer an estate of a different character, valued at $35,558.07, three-fourths of which consists of property claimed by her as her own. Before his appointment she undoubtedly believed, and had reason to believe, that his attitude toward her claims was not adverse; whether this arose from what he said or failed to say is of no importance. (Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950.) His duty under the circumstances was candor toward her and toward the court; he should have
It is urged, however, that there was no sufficient allegation in
Some remarks are also made about the discretion of the district court and the willingness of the administrator to have the disputed questions of title settled by an agreed statement of
3. An examination of the record and of the authorities convinces us that the failure of the administrator to include the
We have said above that the widow is not incompetent merely
The order appealed from is reversed, wdth directions to the district court of Silver Bow county to revoke the letters of administration heretofore issued to Charles A. Blackburn, and to grant the petition for the appointment of the appellant, unless the court shall find, from the evidence taken or which may be taken at a further hearing, that she is incompetent for want of proper understanding or integrity, in which event to appoint such competent person as she may nominate.
Reversed and remanded.
Rehearing denied December 24, 1913.