132 P. 421 | Mont. | 1913
delivered the opinion of the court.
On February 13, 1912, A. B. Melzner, administrator de honis non of the estate of Henry Williams, deceased, presented to the district court of Silver Bow county his final account of his administration of said estate and prayed for its settlement and allowance. Due notice of the time and place for hearing such report was given, and within the time allowed A. J. Davis, as special administrator of the estate of Rachel E. Williams, deceased, and in his own right as the residuary legatee under the last will and testament of Rachel E. Williams, presented objections in writing to the allowance of such account upon the ground that certain alleged claims against the estate of Henry Williams, deceased, had not been paid. In the written objections it is set forth that from August 12, 1902, to March 3, 1907, Rachel E. Williams was the duly appointed, qualified, and act
We are not informed as to the theory upon which the trial court proceeded in ignoring the written objections made by A. J. Davis to the final account of the administrator de bonis non. We are not prepared to say that the objections are sufficient to entitle them to serious consideration. While it is set forth that the several claims made by Rachel E. Williams against the estate of Henry Williams., deceased, were allowed, it is not anywhere alleged that the orders allowing them have not been vacated or set aside, or that appeals have not been taken therefrom. It is alleged that there is certain real estate in the possession of the administrator de bonis non belonging to the estate of Henry Williams, deceased; there is not, however, any allegation that the administrator has any personal property available for the payment of estate debts. While it is further alleged that no part of the several claims allowed to Rachel E. Williams has ever been paid, there was not any offer of proof in support of this allegation. But, independently of the objections made, the order of the trial court is indefensible.
It is very clear from sections 7661 and 7662, Revised Codes, that a final account of an administrator or executor cannot be settled or approved so long as there are outstanding claims
And it is equally apparent that it was the intention of the legislature that, before a final account be approved, the executor or administrator must show .affirmatively that he has paid all outstanding claims against the estate or that he has exhausted the property available for such purpose, and in the absence of such showing his final account cannot be approved.
While it is not within the power of an executor or
Our attention is directed to the following language employed by this court in Dodson v. Nevitt, 5 Mont. 518, 6 Pac. 358: “Claims against the estate are those in existence at the date of the death of the deceased. Other claims against an estate are those incurred by the administrator or executor in settling the estate, and are properly denominated expenses of administration.” It is now insisted that by this classification a claim for advances made to an estate cannot be considered a claim against the estate; but the language above quoted is to be understood in the light of the question before the court for determination at that time. The point at issue was whether or not a claim for services performed at the instance and request of an executor of an estate constituted a claim against the estate. The court held that it did not; that, if anything, it was an item in the expense of administration of the estate. If the language quoted be accepted literally, it would preclude a claim for funeral expenses; but the statute in force at the time the decision above was rendered (sec. 273, Second Div., Rev. Stats. 1879) particularly recognized a claim for funeral expenses as a claim against an estate.
In making the several orders approving the advancements made by Rachel E. Williams, we must indulge the presumption
The order of the district court is reversed and the cause is remanded for further proceedings.
Reversed and remanded.