157 N.W. 288 | N.D. | 1916
This is an appeal from an order of the district court of Nelson county disallowing exceptions to an accounting previously overruled in probate court. Letters of administration were issued to J. M. Lamb in October, 1908, upon the estate of Anthony E. Eelder. Administrator farmed the lands in 1909, and also finished farming operations previously conducted by him as agent of the deceased in 1908. The lands were sold in 1910 except a residence property apparently remaining unsold. No administrator’s accounting was ever had until one was filed in October, 1911. In July, 1911, plaintiff had procured a judgment in district court against said administrator in his representative capacity upon two causes of action, which judgment, with costs, aggregated $360.79. One of the causes of action included in the complaint was in the sum of $139 for funeral and burial expenses of the deceased Eelder. Judgment was awarded on demurrer, the order for judgment directing judgment for said amount, with interest, together with an amount found due upon the second cause of action. A judgment in the lump amount of $360.79 was entered inclusive of both causes of action. Both judgment and order therefor directed payment by the administrator “in due course of administration,” and were filed forthwith in the probate court. Plaintiff appeared at the hearing of the administrator’s account, no part of the judgment having been paid, and interposed ob
The portion of the judgment against the administrator for funeral expense is a charge against the estate the same as the expense of administration, and under the express terms of § 8755, Comp. Laws 1913, must be paid next after necessary expense of administration. It is a preferred charge to be paid in preference to all debts of the decedent, whether secured or unsecured. The administrator’s account discloses that over and above the cropping expenses, which are expenses of administration under the circumstances of this case, there were many disbursements made by the administrator in the payment of debts secured and unsecured of the decedent amounting to several times the funeral expenses. To this extent the administrator has misapplied the funds-of the estate. Tor this he is responsible, .as he had paid these claims without any prior court order establishing the order of preference, and subsequently presented his accounting disclosing such erroneous misapplication of the proceeds of the estate. Beyond all doubt he acted in good faith, and had probably at first assumed that the funeral expenses incurred at Washington, District of Columbia, had been paid by the relatives. But under his own testimony he afterward had notice to the contrary, and that the funeral charges remained unpaid in 1910, as on the 13th of December of that year a formal claim was filed with him, while prior to that time the claim had been refused or its payment neglected, and it had been in the hands of others for collection. In fact the administrator testifies that, while he doesn’t remember the date of its first presentation, that “it might have been right after” his appointment. “I don’t know just exactly what the date was. I know he wrote me. I met him
But respondent contends that by merging the claim in judgment with another by the taking of a judgment for the lump sum, priority of payment of the charge as funeral expenses is waived, and that the court must regard the entire judgment as an ordinary demand against the state and payable as such as a claim subordinate to all those for which the estate’s funds have been distributed. But with the judgment there was filed in county court the order for judgment granting judgment upon the first cause of action in the amount therein set forth in the suit brought against the administrator, and which cause of action set forth the facts upon which it was based, and that the charge was for no other than funeral and burial expenses. This order for judgment was entered upon the administrator’s demurrer admitting such to be the facts. He was directed to “pay the plaintiff in due course of administration the sum of $139, together with interest on it at 7 per cent per annum from the 5th day of September, 1908, and the further sum of $150.90, with interest thereon at the rate of 7 per cent per annum from the 19th day of June, 1908, together with costs and disbursements of this action.” The administrator well knew of what the first item of $139 consisted, and likewise the probate court must have known that it was for funeral expenses, and that to comply with the order of the district court the funeral expenses should be paid “in due course of administration.” To do this it must be paid in order of preference next after the necessary expenses of administration of the estate. And although the exceptions taken to the account, numerous though they are, and unneces
None of the other fourteen assignments, based upon that many exceptions to the account, are allowed, excepting No. 2, which was not a preferred claim, but one of the lowest grade, as was the balance over funeral expenses of this judgment. All other exceptions to the account are overruled without further discussion.
One further question deserves mention. The respondent in district court moved “to dismiss the appeal (from the county court) on the ground that the appellant as a creditor is not a party to the proceeding in county court, and is not a party in interest as defined by the statutes, and not entitled to appeal from the order allowing the annual report, and that an order allowing an annual report of an administrator made by a county court is not an appealable order.” Taking these in order, the appellant even as a creditor of the estate so far as an administrator’s accounting is concerned is a party interested in the estate. The approval of the account establishes its validity as against the claim asserted, and the only remedy of this judgment creditor is by appeal. The district court, having but appellate jurisdiction, is devoid of authority to rank or classify the claim, or otherwise, except on appeal, disturb the accounting as settled by the order of the probate court. The parties were in probate court upon a hearing called for the very purpose, not only as between the heirs and those who would share in a division of the assets of the estate, but inclusive of creditors of all classes. This is discussed and settled in Johnson v. Rutherford, 28 N. D. 87, 147 N. W. 390. Subdivision 11 of the syllabus in that case reads: “Probate procedure
This passes upon all questions necessary except concerning costs. It was necessary, for plaintiff to sue the administrator to establish the right to payment of a preferred claim, a charge against the estate for funeral expenses. He is entitled to the costs of this litigation, with the amount of funeral expenses and interest thereon, together with his necessary expense and disbursements at the hearing of the administrator’s account, together with his taxable costs on this appeal. The district court will tax costs in plaintiff’s favor accordingly for the trial had in that court, together with the plaintiff’s appeal costs, and enter judgment therefor, and order also that the probate court disallowed said accounting and set aside its order of confirmance thereof, and that it require the administrator to pay the funeral charges and costs of collection aforesaid, and that such further proceedings may be had in probate court as are provided by law.