159 P.2d 586 | Utah | 1945
Lead Opinion
Appeal from an order of a partial distribution made by the District Court of Salt Lake County.
By the terms of the will of John C. Howard, hereinafter called deceased, his executors set up four trust funds, one for each of his four children. The will further provided that the corpus of the trust estates was to be paid to the several beneficiaries as they reached the age of 35. Under such arrangement the executors have already distributed one trust estate, and have now been ordered to distribute the second. Kathryn Howard Critchlow, one of the children of deceased and whose trust estate is herein involved, died in February, 1944, after attaining the age of 35 years. She left a will in which she named respondent as executor. At the time of her death she was not a resident of Utah. Subsequently this will was admitted to probate in the District Court of Salt Lake County and respondent, also a non-resident, was confirmed as executor. The executors of the Howard will filed a final account and petition for distribution of the John C. Howard Estate. Respondent filed objections to the account. The executors replied to
1. That the District Court erred in ordering the trust fund or part thereof turned over to respondent before the completion of hearing on and settlement of the executors’ accounts.
2. That in ordering any property of the Kathryn Howard Critchlow estate turned over to respondent, the court erred because:
(a) The court, sitting in probate, had no jurisdiction to admit to probate the will of Kathryn Howard Critchlow, a non-resident of the state, since said will had not been proved and admitted to probate in the domiciliary state of the testator;
(b) That the respondent, being a non-resident of this state, was incompetent under the statute to serve as executor. We note them seriatim.
1. In considering this question, the basic facts should be kept clearly in mind. The will of deceased, after a few specific bequests, vested the title to all property of the estate in the executors in trust for the benefit of the children. It did not create and set up the trust funds herein referred to for each of the children. It directed the executors to set up from the estate, a trust fund of not less than $125,000 in favor of each child of deceased; that the corpus of each trust was to be paid over to the beneficiary upon her attaining the age of 35 years; the will declaring that upon the
“Until the county court makes an order for partial or final distribution of the estate of a decedent, * * * the executor or administrator is without authority to deliver any of the estate to a trustee, and until distribution is made of part or all of the estate the trustee has no duties to perform, and this is true even where, as here, the same individual is both executor, and trustee.” In re Cook’s Trust, 192 Okl. 291, 135 P. 2d 492, 494.
See also Nolan v. Mathis, 147 Okl. 155, 295 P. 801; In re Gentry’s Estate, 158 Okl. 196, 13 P. 2d 156.
It is evident therefore that the property which the court ordered turned over to respondent was part of the assets in the hands of the executors as such, and therefore the order does not stand as an order to trustees to turn over a trust fund.
The argument is made that the motion of respondent
This was not directly a proceeding for a partial distribution. This matter came before the court on the executors’ final account and their petition for distribution of the estate to the persons entitled to receive the same, and for release and discharge of the executors. Proper notice was given of the filing and time for hearing of both the account and the petition. This constituted notice not only of the hearing of the account and the petition, but of all issues and questions that might arise from objections thereto. All matters involved therein were before the court for hearing and determination. In re Estate of Grant, 131 Cal. 426, 63 P. 731; In re Estate of Ryer, 110 Cal. 556, 42 P. 1082. Whether additional notice should be given is a matter within the discretion of the court below, and in. the absence of anything to show an abuse of sueh discretion, the appellate court will not interfere. In re Estate of Jessup, 81 Cal. 408, 21 P. 976, 22 P. 742, 1028, 6 L. R. A. 594. What matters may be adjusted on such hearing? In general, the only items which can properly be settled in an executor’s account are matters relating purely to his administration of the estate; payment of debts and charges of administration; but upon the petition for distribution the court, in harmony with its general equitable power, can hear and adjust all matters between the executors and the legatees and distributees, and give the former credit against the latter for all advances made to either under the terms of a will. U. C. A. 1943, Sec. 102-12-9. In re Estate of Willey, 140 Cal. 238, 73 P. 998. Jurisdiction of “matters of probate” includes determination of what persons succeed to the estate whether as devisee, legatee, an heir, and the part or amount of the estate to which each is entitled; and the
In the instant case, the will directed the executors to set up from the property in the estate a trust fund in favor of each of testator’s daughters. Such trusts were to be administered and not delivered to.the cestui que trust until she became 35 years of age, when she was to be given the corpus of the trust. Under the terms of the will, therefore, when the trusts were set up according to law, the daughters became legatees of such property, and would ultimately receive the same — not as heirs under the statutes of succession, but as legatees under testamentary disposition. By the terms of the will there were certain other legacies to be paid after the trusts were
2. Is respondent the person entitled to receive the interest of Kathryn Howard Critchlow in the estate of John C. Howard?
(a) Executors’ first argument is that the probate court had no jurisdiction to admit to probate the will of Kathryn Howard Critchlow, a non-resident, because the will had not been probated at the domicile of the deceased. Admittedly, there is a sharp conflict of authority. There are cases holding that probate courts have such jurisdiction in the absence of statutory provisions. Varner v. Bevil, 17 Ala. 286; Arnold v. Arnold, 62 Ga. 627; Parnell v. Thompson, 81 Kan. 119, 105 P. 502, 33 L. R. A., N. S., 658; Putman v. Pitney, 45 Minn. 242, 47 N. W. 790, 11 L. R. A. 41; Knight v. Hollings, 73 N. H. 495, 63 A. 38; In re Holden’s Estate, 110 Vt. 60, 1 A. 2d 721, 119 A. L. R. 487; In re Clayson’s Estate, 26 Wash. 253, 66 P. 410. But in most states this matter is controlled by statute. Sec. 102-1-2, U. C. A. 1943, provides:
“Wills must be proved and letters testamentary or of administration granted * * *
“(2) if the decedent was a nonresident of the state: first, in the county in which he may have died leaving estate therein; second, in any county in which any part of the estate may be, the decedent not having left estate in the county in which he died, or having died without the state. * * *”
This court has never passed upon the question, but the Wyoming court under identical statutory provisions, said In re Smith’s Estate, 55 Wyo. 181, 97 P. 2d 677, 682:
“It is held by the great weight of authority under like or similar statutory provision that a will may be admitted to probate in a state other than that of the domicil of the deceased, though it has never been admitted in the latter state; and that the admission to probate in the state of the domicil is not a condition precedent to the admission in another state where the deceased leaves real or personal property. * * *” (Citing numerous cases.)
“ ‘The court had jurisdiction to grant original probate of the will of the deceased, although a nonresident, since she had left property within this state.’ See, also, Dungan v. Superior Court, 149 Cal. 98, 84 P. 767, 117 Am. St. Rep. 119 [9 Ann. Cas. 1017], and In re Estate of Davis, 149 Cal. 486, 87 P. 17.”
Other cases to the same effect are Frederick v. Wilbourne, 198 Ala. 137, 73 So. 442; Hofferd v. Coyle, 212 Ind. 520, 8 N. E. 2d 827; Payne v. Payne, 239 Ky. 99, 39 S. W. 2d 205; Crippen v. Dexter, 13 Gray, Mass., 330; Bolton v. Barnett, 131 Miss. 802, 95 So. 721; Knight v. Hollings, 73 N. H. 495, 63 A. 38; In re Barney’s Will, 94 N. J. Eq. 392, 120 A. 513, and others in annotation, 119 A. L. R. 497. We conclude therefore that the probate court had jurisdiction to admit the will to probate and resolve this argument against the executors.
(b) Executors’ next argument is that even if the district court had jurisdiction to admit the will to probate, it had no power to appoint respondent, a non-resident, as executor, and such appointment is void. Sec. 102-3-15, U. C. A. 1943, deals with competency to act as executor:
“No person is competent to serve as an executor who, at the time the will is admitted to probate, is either:
“(1) Under the age of majority;
“(2) Convicted of an infamous crime; or,
“(3) Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. * * *”
And more specifically, Sec. 102-3-19, U. C. A. 1943, provides:
“Where a person absent from the state or a minor is named executor, if there is another executor who accepts the trust and quali*309 fies, the latter may have letters testamentary and administer the estate until the return of the absentee, or until the majority of the minor, who may then be admitted as joint executor. If there is no other executor, letters of administration with the will annexed must be granted; but the court may in its discretion revoke them on the return of the absent executor or the arrival of the minor at the age of majority. This section shall not be construed to prevent the court from appointing as executor any person appointed as such by a court of any other state, territory or foreign country.”
The executors argue that while Sec. 102-3-15 dealing with competency does not include a residence requirement, Sec. 102-3-19 must be read in conjunction therewith as imposing this additional qualification. It is argued that the last sentence of the latter section makes the intent clear to exclude non-residents from being appointed executor in this state. Before passing to a consideration of the cases, we note the comparable provision as to administrators. Sec. 102-4-4, U. C. A. 1943, provides that;
“No person is competent or entitled to serve as administrator or administratrix who is either: * * *
“(2) Not a bona fide resident of the state * *
There is no doubt as to the legislative intent in this regard. A non-resident is not competent to act as an administrator, and respondent argues, with some force that the legislative intent deducible therefrom is that non-residents may act as executors, since the provision is not that one “not a bona fide resident of the state” is incompetent, but merely that when “a person absent from the state” is named executor, the court shall appoint another to act until the return of the absent person. Note also the language “return of the absent executor,” rather than saying until the non-resident executor becomes a resident of this state. This court construed the section In re Love’s Estate, 75 Utah 342, 285 P. 299, wherein it was held that a non-resident is not disqualified to act as executor, citing In re Estate of Kelly, 182 Cal. 81, 186 P. 1041; In re Estate of Brown, 80 Cal. 381, 22 P. 233; Hecht v. Carey, 13 Wyo. 154, 78 P. 705, 110 Am.
We have also held In re Raat’s Estate, 102 Utah 482, 132 P. 2d 136, 139, that:
“The refusal of the trial court to appoint the executor named in the will was error inasmuch as no showing of any disqualification upon any of the grounds specified in See. 102-3-15 was made.”
That was a case where the ground of disqualification urged was ill will of the petitioner to other heirs, and the court set aside the appointment of an administrator with will annexed, which had been made by the district court on the ground that such situation does not amount to a disqualification under the statute above set out. The rationale of the case is that while the court may have a discretion as to appointment of administrators, the deceased may appoint his own executors, and though such person might otherwise be disqualified, he must be issued letters unless prohibited by positive statutory provision. Welsh, Driscoll & Buck v. Buck, 64 Utah 579, 232 P. 911; Estate of Bauquier, 88 Cal. 302, 26 P. 373. Under these authorities, this argument is resolved against the executors. As we read Sec. 102-3-19, U. C. A. 1943, the court must appoint the nonresident named as executor in the will, when he appears and submits himself to the jurisdiction of the court. The court may in its discretion revoke letters previously given to another when the non-resident comes in later and submits to the court’s jurisdiction. Aside from this, we doubt executors’ standing to here question respondent’s appointment. The lower court had jurisdiction and its order cannot be assailed collaterally. Chilton v. Union Pac. Ry. Co., 8 Utah 47, 29 P. 963; In re Upton’s Estate, 199 Wash. 447, 92 P. 2d 210, 123 A. L. R. 1220.
The order is affirmed and the cause remanded to the district court for further proceedings. Costs to respondent.
Concurrence Opinion
I concur with the conclusions reached and the reasoning supporting said conclusions as to questions 2(a) and 2(b). I also agree with the conclusions reached on the first question and generally with the reasoning. However, there are numerous statements of law set out in the opinion in connection with the consideration of question number one which I do not believe are necessary to the opinion. This is particularly true of the discussion of the relationships and duties of trustees and executors. I am not prepared to say that a trust, the terms of which are prescribed by a will, cannot come into existence until there is a decree of distribution transferring the assets or funds to the trustees as such. Title to the property did not in this case vest in the executors as such. See Chamberlain V. Larsen, 88 Utah 420, 29 P. 2d 355. The will expressly provided that the property should go to the executors in trust for the benefit of the testator’s four children. The provision read:
“To my executors, I give, devise and bequeath the balance and residue of my estate, * * * in trust, however, for the sole use and benefit of my four children, * *
It is true that the will did not set up the four distinct trust accounts, one for each of the four children. But it did vest title to the trust property in the executors as trustees.
The executors, following the direction of the will, set up the four trust accounts. Under the will each trust was to be administered until the beneficiary of that trust reached the age of 35, at which time the corpus of the trust was to be delivered to the beneficiary. The executors administered the trust accounts, and from time to time paid over the income from the trusts to the various beneficiaries. When Mary Eoberts, one of the beneficiaries, reached the age of 35 the corpus of her trust was given to her. Kathryn had reached the age of 35 before her death, and it was time, under the terms of the will, to transfer the
The record reveals that the administration of the estate had proceeded to a point where distribution of trust funds set up in an account for Kathryn was proper. The distribution was also in compliance with the terms and conditions of the will. On August 25th, 1944, the executors of the estate of John C. Howard, deceased, filed an account and
Concurrence Opinion
I concur with the result reached by Mr. Chief Justice LARSON and with the reasoning therein necessary to reach that result. As to other matters discussed which are not necessary to reach the result, both in the prevailing opinion and the concurring opinion of Mr. Justice WOLFE, I do not express any opinion.
