163 P.2d 651 | Colo. | 1945
ARTHUR OVE died at Kansas City, Missouri, January 24, 1945. Nine days later one McGuire of Lowell, Massachusetts, filed a petition as a creditor in the county court of the City and County of Denver, alleging that there was intestate personal estate of decedent in Colorado of the value of $500 or more, and asking for the appointment of defendant in error Hilliard as *288 administrator of the estate. The petition was granted and letters issued the same day. February 12, nineteen days after Ove's death, plaintiff in error, Audrey Ove Handley, filed petition showing that she was the daughter and sole heir of Arthur Ove; that there was no relative within the State of Colorado who would administer upon decedent's estate, and that a domiciliary administrator had been appointed in Jefferson county, Missouri. In her petition she nominated Arthur Maroney, a qualified citizen of the City and County of Denver, as administrator, and prayed for revocation of the letters issued to defendant in error Hilliard and for appointment of Maroney as administrator of said estate.
Thereupon defendant in error filed motion to strike from the files the Handley petition as not setting up facts entitling petitioner to relief and on hearing thereon his motion was sustained. From this ruling appeal was taken to the district court where, on motion of defendant in error, the appeal was dismissed on the ground that the order appealed from was not a final order and that the petition of plaintiff in error was legally insufficient to entitle her to relief.
The matter is here presented on application for supersedeas and upon request of plaintiff in error we shall make final disposition of the case upon such application for the reasons that the record is very brief; the necessary facts for decision undisputed; the questions of law involved few and the situation such that if the case is left for consideration in due course, in all probability before decision by this court the present administrator will have fully administered the estate and the case thereby have become moot.
[1] It is urged by defendant in error that reversal should be denied for the reason that the order sought to be reviewed was not a final order, and our attention is directed to Peters v. Peters,
Again, in Estate of Bourquin,
Again, in Rosenboom v. Cline,
Still again, in Thompson v. Jack,
From these decisions of this court it appears that, notwithstanding the statement in the Peters case that a refusal to revoke letters of administration is not a final judgment, we have consistently treated such orders as appealable and subject to review. The question was directly raised in Flowers v. Zeilinger,
In the case now before us we do not have for consideration conduct which may be corrected and controlled by a subsequent court order, but a claim of absolute disqualification of the administrator on the ground that, under the statute, the court has no discretion and the appointment of her nominee is mandatory. An order determining the issue of statutory authority is a final order in the sense that it is subject to review. To hold otherwise would be in effect to annul any regulatory statute as to rights of administration.
Under a similar statutory provision, the Utah court held that a decree denying a petition to set aside the order of appointment of an administrator is a final order. In re Tasanen's Estate,
[2] It is further urged that the action was brought against defendant in error personally when he was involved in his official capacity as administrator only. Since this action was not brought concerning any conduct of defendant in error in such official capacity, but instead was based upon his personal right to act as administrator, it was properly brought against him personally and not against the office which he represents. However, if true, error in strict official designation is of little moment. "A mistake in the caption of a complaint as to official designation of parties is of no grave consequence, if the allegations in the body of it show with sufficient certainty the real capacity in which they are parties to the suit." Owens v. Dudley,
[3] The right to administer estates of decedents is governed by statute. Such statutes are mandatory and may not be disregarded by courts if the person entitled *292
to the preference is not otherwise disqualified. Thompsonv. Jack,
Subsequently there was established the office of public administrator, and by chapter 124, Laws of 1913, appointment of such administrator was authorized and made mandatory in counties having more than fifty thousand inhabitants, and it was provided that in such counties where any person shall die leaving estate and having no relative within this state who will administer thereon, it shall be the duty of the judge of the county court upon application to commit the administration to the public administrator; "Provided, that if within sixty days after the death of said deceased, his heirs at law nominate any other qualified person as administrator, then such person shall be appointed if he gives such bond as may be required, and if letters of administration have theretofore issued upon said estate to the public administrator, they shall be revoked." This statute modified the 1903 act, in so far as it defined the right to administer estates in any county having a population of more than fifty thousand inhabitants. Thereafter by chapter 272 of the Laws of 1937 (§§ 103, 104, chapter 176 '35 C.S.A.) this last mentioned statute was amended to extend the application of the statute concerning public administrators by providing that the county judge of any county having a population of more than twenty thousand inhabitants may appoint a public administrator, and further providing that where a decedent shall have no relative within the state who *293 will administer his estate, the judge of the county court may commit the administration to the public administrator"or to some other discreet person." But this amendment of the statute continues in force the provision of the 1913 act, that if within sixty days after death the heirs nominate any other qualified person as administrator then such other person shall be appointed if he give such bond as may be required, and if letters have theretofore issued to the public administrator or to someother person, they shall be revoked. This statute must be considered in connection with the earlier statutes and construed as superseding such statutes to the extent of its declaration of rights of administration.
[4, 5] We are here concerned with administration of an estate within the City and County of Denver where there is a public administrator, that office being presently occupied by the defendant in error herein. Accordingly, the provisions of the statutes concerning public administrators and amendments thereof are applicable. It avails defendant in error nothing that he had himself appointed, as he asserts, in his individual capacity and not as public administrator. The statute requires that upon compliance with its requirements, letters issued to the public administrator or to any otherperson shall be revoked. His competency and honesty and good management of the estate are not challenged and are not involved. The discretion of the county judge in the City and County of Denver in his appointment of any administrator is necessarily restricted by the statutory limitations thereon. The 1937 amendment was entitled, "An act concerning the administration of estates and amending the law regarding public administrators," and is comprehensive enough in its title to include others than the public administrator. In the case at bar the sole heir at law having within sixty days after the death of Arthur Ove filed a verified petition showing that decedent had no relative within the state who will administer his estate, and having nominated *294 an allegedly qualified person as administrator, such person so nominated should have been appointed in the absence of allegation and proof of facts disqualifying such nominee. Any pleading alleging disqualification of the nominee should be required with the utmost promptness so that the matter may be determined without further delay. If upon hearing the nominee is found qualified, he should be appointed forthwith and the letters of administration issued to defendant in error should be revoked.
The judgment is reversed and the cause remanded for further action in accordance herewith.
MR. JUSTICE HILLIARD and MR. JUSTICE ALTER did not participate.