151 P. 537 | Utah | 1915
Lacy H. Farnsworth and Emma J. Turner, as heirs at law , and as legatees and devisees of Abram Hatch, deceased, hereinafter styled appellants, made application to the district court of Wasatch county, while acting as a probate court, to remove Ruth Hatch, hereinafter called respondent, as executrix of the last will and testament of said Abram Hatch, de
The application for removal is based on Comp. Laws 1907, section 3837, which, so far as material, reads as follows:
"The court may at any time suspend any administrator or executor; and may, upon citation, revoke the letters of any * * * executor or administrator for neglect, mismanagement, waste, embezzlement, incompetency, incapacity, or be-i cause of conviction of an infamous crime, or for any other reason deemed sufficient by the court. ’ ’
The appellants, in substance, charged respondent with incompetency, mismanagement, want of integrity, which, it was alleged, had been judicially established, and that she claimed large amounts of property which belonged to the estate, and which she had refused, and still refuses, to inventory, and that her personal interests were in conflict with the interests of said estate to such an extent as to incapacitate her to act as executrix, etc. The respondent appeared and answered the application. She denied the charges, and set up various matters in defense which it is not necessary to state in detail. The evidence produced at the hearing for and against the application is so voluminous and of such a nature that we shall, during the course of this opinion, merely refer to such
“Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, * * * as shall be provided by law.’’
The statute (Comp. Laws 1907, section 3300) is practically a transcript of the constitutional provision just referred to. We are of the opinion that the order or judgment appealed from in this case is a final order within the rule laid down by the court in Honerine, etc., Co. v. Tallerday, etc., Co., 30 Utah, 449, 85 Pac. 626, and Winnovich v. Emery, 33 Utah, 345, 93 Pac. 988. Such must also have been the conclusion reached by this court in deciding the appeal in re Owen’s Estate, 30 Utah, 351, 85 Pac. 277, where an appeal was taken from an order refusing to revoke the letters of administration which had been granted to one who had been prematurely appointed by the probate court of Salt Lake County. The application was there made under another provision of section 3837, supra, and this court reversed the order of the lower court, and in effect directed that court to remove the appointee. While the question of jurisdiction was not directly discussed in that case, yet it was necessarily involved, and that decision is therefore decisive of the question here.
The respondent, in her answer to the application for removal, while denying the legal effect claimed by appellants for the verdict of the jury and judgment in that case, nevertheless admits the verdict and judgment and her acquiescence therein. For the purpose of proving the legal effect of that verdict and judgment, and to prove that the respondent had, by the verdict of the jury in that case, been found guilty of misconduct with respect to said note, the appellants offered in evidence the judgment roll, including the pleadings, in’that ease, and in connection therewith offered the requests to charge and also the charge given by the court to the jury. The foregoing evidence was offered, in connection with other evidence, for the purpose of showing the matters in issue and the questions that were presented to the jury for determination. The testimony of the respondent given in her own behalf, and that of Abram C. Hatch and others which had been adduced on behalf of the estate, was also offered, for the purpose of showing what was in fact litigated and determined in that case. Respondent’s counsel objected to all of said offers-“on the ground that it is immaterial, irrelevant, and incompetent.” The court excluded all of the proffered evidence, all of which, being in the form of documentary evidence,- that is, in typewriting, it was, by agreement of counsel, either attached to or made a part of the bill of exceptions in this case by reference. In view, therefore, that we have held this an
“In order for the plaintiff to recover in this action the burden is on the plaintiff to prove by a preponderance of the evidence: First. That the note in controversy was made, executed, and delivered bjr A. K. Farnsworth and Lacy Farns-worth to Mr. Abram Hatch. Second. That said note, after its execution, and delivery to said Abram Hatch, if you find from a preponderance of the evidence, it was executed in favor of and delivered to said Abram Hatch, was changed by pen writing so as to make it read, in the body thereof, by the addition of the letter ‘s’ to ‘Mr.,’ before the name of Abram Hatch, payable to Mrs. Abram Hatch, and that said change was without the knowledge or consent of said Abram Hatch. Third. That the defendant, Ruth Hatch, still unlawfully withholds and* retains said promissory note from possession of the plaintiff in this ease. If you find from a preponderance of the evidence that the plaintiff has proved all of the above points mentioned in this instruction, then I charge you, gentlemen of the jury, that the plaintiff is entitled to recover in this action. If you find that the plaintiff has not proved by a preponderance of the evidence on any one of the above-mentioned points, then I charge you, gentlemen of the jury, that you should find for the defendant no cause of action.
“Defendant has admitted that the check given to A. K. Farnsworth for the said note was drawn on the account of Abram Hatch, and that the interest paid on said note was credited to the account of Abram Hatch. This evidence is material only in determining whether or not the note was originally made payable to Mr. Abram Hatch or Mrs. Abram Hatch.
“If you find from a preponderance of the evidence that the note in question was made payable to Mrs. Abram Hatch, and was so drawn by or with the consent of Abram Hatch, then your verdict should be for the defendant, although you may find that it was so made payable without the knowledge or consent of Lacy A. Farnsworth.”
The jury, having found for the plaintiff, must have found the following facts against the respondent: (1) That the $2,000 note there in question belonged to the estate of Abram Hatch deceased and not to respondent; (2) that said note was altered as indicated in the instructions above set forth; and (3) that respondent unlawfully withheld said note from the possession of said estate. One of the questions tried out before the jury was whether said note had been made pay-ale to “Mr.” Abram Hatch, or to “Mrs.” Abram Hatch. Respondent contended it was originally made payable to her as “Mrs.” Abram Hatch, and the plaintiff in that case insisted that it was originally made payable to “Mr.” Abram Hatch, and by respondent changed so as to make it payable to “Mrs.” Abram Hatch — that is, herself — by adding an “s” to the word “Mr.” That precise question was submitted to the jury, and they found the issue against respondent, and in favor of the plaintiff. Appellants contend that the finding of the jury and judgment in that case against respondent is evidence of her misconduct, and therefore evidence of her unfitness to further act as executrix of said estate. As before stated, respondent’s counsel objected to said evidence, and the whole thereof, upon the grounds before referred to. Counsel now contend stating their contention in their own words:
“The judgment rendered in favor of A. C. Hatch executor
They insist that the objection is well taken, for the reason that neither the parties nor the issues are the same in this proceeding that they were in the former action. They contend that the appellant Lacy H. Farnsworth, as one of the makers of said note, was not and is not bound by the judgment in the former action. Again, giving their contention in their own language, they say:
“If A. C. Hatch, as executor, should now sue Mrs. Farns-worth to recover the amount of this note, she would have the undisputed right, if she could, to prove that the note was given, to and [was] the property of Ruth Hatch [the respondent] , and had been paid to her, and that the judgment to the contrary rendered in a case to which she was not a party could not preclude her from making this proof. Es-toppels must be mutual and reciprocal, and if one party is not bound the other cannot be. ’ ’
It seems to us that counsel were betrayed into njaking the foregoing statement by the assumption that Mrs. Farns-worth was not represented in the former action, because she was not named as a party thereto. A. C. Hatch sued the respondent in his representative capacity. As executor of the last will of Abram Hatch, deceased, A. C. Hatch represented all of the legatees and devisees named in said will, in so far as the matters litigated affected such devisees and legatees. Both of the appellants are legatees and devisees under the will. They both sue in this application as such legatees and devisees, and both wore represented in the former action as such. They, therefore, were both represented by the executor in such action, and both are bound by the judgment rendered therein. Would counsel seriously contend that, if the findings and judgment in the note case had been in favor of respondent, appellants could again sue her to recover said note? We think not. Appellants are bound by that judgment, just the same as A. C. Hatch is bound thereby, and as respondent is bound.
Counsel were apparently further led astray by overlooking the fact that, although one may be bound in a representa
“Under the term ‘parties,’ the law includes all who are interested in the subject-matter of litigation, who will be gainers or losers by its result, and for or against whom the record of the [former] proceeding might be adduced in evidence in another trial; those who have the right to be heard, and to offer testimony and examine the witnesses. ‘Privies’ are those who are so connected with the parties in estate, or in blood, or in law, as to be identified with them in interest, and consequently to be affected with them by the litigation, as lessor or lessee, heir and ancestor, executor and testator. All others not included in either of these classes are, of course, strangers.”
That the issues in the former action and the present one are the same, within the rule which permits a former judgment to be used as evidence, is also made clear by the author of 2 Black on' Judgments, section 614. In discussing what constitutes the matter in issue, the author there says:
“But what is the ‘matter in issue,’ within the meaning of this rule? Is the test to be furnished solely by the issues framed in the suit, or also by the course and nature of the evidence? Suppose that a question arises on the trial, which, per se, has nothing to do with the cause of action, and is not mentioned in the pleadings, but which materially affects the stated issue, and must be determined before the issues can be found either way. Suppose, further, that such question, thus becoming necessary to the decision of the cause, is controverted between the parties, and is made the subject of evidence, argument, and instructions, and that its resolution in effect determines the verdict of the jury.”
The author then proceeds to discuss the variant views of the courts, and proceeds further:
“The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated*72 and tried — that the parties have had an adequate opportunity to say and prove all that they can in relation to it, that the minds of court and jury have been brought to bear upon it, and so it has been solemnly and finally adjudicated.”
In view of the foregoing statements, it would seem to require no argument on our part to show that both the parties and the issues of the two proceedings in question were such as to clearly bring the proffered evidence within the rule which authorizes the admission of a judgment in a former proceeding as evidence of the facts which were judicially determined in that proceeding. The district court, therefore, clearly erred in refusing to consider the proffered evidence.
Her counsel, however, further contend that the mere fact that respondent claims property which is also claimed by the estate, or may ultimately be found to belong to the es
' Upon the other hand, counsel for the appellants refer us to eases in which the courts have removed administrators or executors upon the ground that their interests conflicted with those of the estates they represented. Among the eases' cited upon that subject are the following: In re Gleason’s Es-
“One whose personal interests are in conflict with his duty as administrator is not a proper person to hold the office.”
In Putney v. Fletcher, supra, the Supreme Judicial Court of Massachusetts, in the course of the opinion, said:
“An executor or administrator is deemed unsuitable when he has' any conflicting personal interest which prevents him from doing his official duty.”
To the same effect are the other cases last above cited. In the very nature of things such must be the law. The old proverb, “No man can serve two masters,” or as the Spanish put it, ‘ ‘ He who has two masters to serve must lie to one of them,” is as true now as it ever was, and is as applicable in the .administration of estates as elsewhere. Indeed, in such matters courts should be very careful to prevent the claimants or creditors from passing upon their own claims, where such claims are being contested. In the nature of things it is not possible for any one to act with perfect impartiality and fairness in a matter in which he claims valuable and important interests. That fact is universally recognized, and especially in our courts of justice, and the only reason that it is not always strictly applied is because it is impractical to do so.
“In case of removal, * * * of one of several executors or adiminstrators, the court, if it deems it necessary, may appoint a successor, or may permit the remaining executor, * * * to complete the execution of the trust.”
'While the question of whether another executor should be appointed is a matter for the probate court in the first instance to determine, and upon which we disclaim any desire to even intimate what that court should do, much less direct it to act, yet, under all the facts and circumstances of this case, it may not be improper to suggest that it seems to us that it would be quite proper for the court to appoint some , suitable and proper person, and one who is satisfactory to the parties in interest, if possible to do so, to act in the place of the respondent.
In view of what has been said, we are clearly of the opinion that the respondent is disqualified to further act as executrix of the estate in question, and that she should therefore no longer be permitted to discharge the duties of that office.
It is therefore ordered and adjudged that the order or judgment of the district court of Wasatch county, dismissing the application, be and the same hereby is reversed, and the cause is remanded to that court, with directions to set aside its findings and judgment, and to make findings in accordance with the views herein expressed, and in case respondent refuses to voluntarily surrender said office within ten days from the time the remittitur of this court is transmitted to the court below, then to enter an order or judgment removing her as