| Mont. | Jan 15, 1881
Proceedings for the sale of the real estate of an intestate are in the nature of an action, of
The administrator has no authority over the real estate of an intestate, except to sell in pursuance of an order of sale properly issued. Having no general authority, he must strictly comply with the order.
After an administrator has made and returned into ■court a sale, any person interested in the estate may file written objections to the confirmation thereof, and may : produce witnesses and be heard in support of his objections. Probate Practice Act, sec. 202.
From the judgment or order of the probate court, confirming or setting aside the sale, an appeal may be taken to the district court. Authority for such appeal is found in the four hundred and thirty-fifth section of the code, and by virtue of the four hundred and thirty-sixth section thereof, such case, when it reaches the district court, shall be tried de novo. Upon the trial in the district ■court, any matter, legitimate and pertinent to the objections raised by the objectors, and not concluded by the judgment ordering the sale, may be inquired into and determined. In order to justify the sale, the administrator must come with full authority, and show that the sale has been in- all respects legally made. Upon hearing the objections to the sale, the court may, if the matters involved therein- have not been passed upon in granting the petition for the sale, inquire into the establishment and authority of the court issuing the order of sale; into the validity of the appointment of the administrator; whether he has qualified as the law provides, by giving the required bond, taking the necessary oath, and giving the proper notice of his appointment, or into any-other competent matter affecting the acts or authority of the administrator. And as the case is tried de novo in the district court, and as new and original papers may be filed therein, and the cause tried therein as if it had
Before a sale may be confirmed, it must appear to the court that the same has been legally made. Probate Pr. Act, sec. 203. And so, if the administrator has failed to show , that the court appointing him was legally constituted and authorized, or that letters of administration were duly issued, or that he has qualified according to law, or that notice of his appointment or of the sale was ■ given according to law, or that the property was appraised and sold as the law directs, then the confirmation cannot take place.
Ordinarily, when in and about the administration of an estate everything has been regular, and the authority of the administrator unquestioned, the confirmation of a sale is much a matter of form, and inquiry upon a hearing for that purpose extends no further than to see that the order of sale has been complied with, and that the sale has taken place in all respects as the statute requires. But in a case where the appointment and qualification of the administrator is disputed, and the authority of the court appointing him is questioned, as they may be on such hearing, it becomes the duty of the district court, wherein the case is tried as if an original action, to determine and adjudicate the questions so presented, to the end that the statute which requires that a sale, before it shall be confirmed, must appear to have been legally made, shall be complied with. A sale cannot be legally made except by one having authority. To give an administrator authority, he must have been duly appointed by a court having jurisdiction and legally constituted, and when so appointed, he must have strictly complied with the law in and about making the sale.
1. This is an appeal from a judgment of the district court setting aside an order of the probate court confirming a sale of property by an administrator. The respond-.
Thereupon the administrator moved the court to strike off said objections, for the reason that it did not appear that the objectors were creditors of the estate, or in any way interested therein, which motion was overruled. A trial ensued, and, after an examination of the proofs, the court rendered judgment that the cause and all the papers therein be returned to the probate court; that the administrator’s report of sale be disapproved, and the sale set aside as null and void; that the administrator proceed to legally qualify as required by law, and settle the estate, giving notice of the adjudication of claims and allowing all parties to present their claims for allowance. From this judgment the administrator appeals to this court.
There was no motion for a new trial, and hence we cannot look into the evidence contained in the record or examine any of the questions raised therein. For the purposes of the case we must conclusively presume that the evidence supports the judgment, and that the objections to the confirmation of the sale were sustained by
The judgment as rendered was within the scope of the jurisdiction and authority of the district court. See Broadwater et al. v. Thomas Richards, Adm’r, decided at this term.
As we are to presume that the judgment of the district court is supported by the proofs, so we are to presume that the judgment of the probate court was not supported by the proofs. If the probate court was properly constituted and authorized, it had jurisdiction to render just such a judgment as was rendered in the district court, and‘should have done so on the same testimony; and if this judgment would have been legal and proper in the probate court, then the appellate court of the probate court, being a court of general common law and chancery jurisdiction, had authority to render the same judgment, and the- judgment that the probate court ought to have rendered.
Judgment affirmed, with costs.