227 P. 1016 | Nev. | 1924
Lead Opinion
Proposition that executor is not, under these circumstances, answerable to process of garnishment is abundantly supported by authorities. Norton v. Clark,
Appeal will lie from decision allowing final administration account. Rev. Laws, 6112. Also, from order refusing to revoke letter of administration. Bailey's Estate,
The point, not having been raised on original hearing, will not be considered on petition for rehearing. Nelson v. Smith,
Administrator need not obtain order to pay general creditors, even though it may be better practice. Fernandez' Estate, 51 P. 851.
Ruling in Norton v. Clark does not relieve appellant, because he was fully advised and permitted check to be used in payment of debt owed by objector and now seeks to recover same amount again. Both were negligent and guilty of laches.
Facts show objector and his counsel were willing to let sheriff satisfy judgment with check and then, if possible, collect amount second time from administrator out of his private funds. If purported assignment was in good faith, why was Buster objector and appellant? Justice is purpose of government.
Subsequently to the filing of the report by the administrator, Streeter filed exceptions and objections thereto upon the ground that he, as the assignee, and not Buster, had been paid, and that the administrator was not subject to garnishment, and that the payment to the sheriff, pursuant to the attachment, did not discharge him from liability. After hearing the objections, the court approved and allowed the report, ordered the payment of the expenses of administration, and a distribution of the estate, and that, upon complying with such order, the administrator and his bondsmen stand discharged from further liability.
Appellant, Streeter, made a motion for a new trial, which was denied. He has appealed from the order denying his motion and from the order approving the final report and discharging the administrator.
1. In support of his contention that the orders appealed from should be reversed, our attention is directed to the case of Norton v. Clark,
"Another circumstance of weight is that an executor or administrator is, to a certain extent, an officer of the law, clothed with a trust to be performed under prescribed regulations. It would tend to distract and embarrass these officers, if, in addition to the ordinary duties which the law imposes, of themselves often multiplied, arduous and responsible, they were drawn into *104 conflicts created by the interposition of creditors of legatees, and compelled to withhold payment of legacies, without suit; to suspend indefinitely the settlement of estates; to attend perhaps, to numerous rival attachments; to answer interrogatories on oath, and to be put to trouble and expense for the benefit of third persons [in] no way connected with the estate, nor within the duties of their trust. It has been decided that money in the hands of a prothonotary or sheriff cannot be intercepted by a creditor of the party entitled to it; but it must be paid over to himself only. 1 Dall. 354. The case of an executor or administrator is analogous to that of a sheriff or prothonotary. He has the fund in his hands as an officer or trustee authorized by law; and if a new party were allowed to levy on it by attachment, there would be no end of disputes and lawsuits; and no business could be certain of ever being brought to a close within a reasonable time. It is of great importance to the interests of heirs, creditors and legatees that the affairs of a decedent's estate be kept as simple and distinct as possible; that its concerns be speedily closed, and the estate adjusted. It is moreover settled that an executor cannot be sued as defendant, in an attachment by a creditor of the testator, and the goods of the testator attached to recover the debt. 2 Dall. 73. The reason is that the estate of a testator ought to come into the hands of the executor, that he may administer it according to law; and pay the debts if the assets suffice; and they ought not to be stopped, and the executor subjected to new responsibilities, by proceedings in attachment. These reasons apply with equal force to the attempt to make an executor garnishee, for the purpose of paying out of the assets in his hands, the debt due to a creditor of a legatee. These funds must travel only in the path pointed out by the laws relating to decedents' estates in their various branches; and cannot be diverted out of that path, without interfering with salutory regulations, and violating some of the most important provisions of the acts of assembly." *105
Many other authorities are cited in support of the rule thus enunciated.
2. The hearing upon the objections to the final report was disposed of by one judge and the motion for a new trial by another. The judge who passed upon the objections and approved the final report seemed to have recognized and accepted the ruling in Norton v. Clark as being applicable, but, in view of the fact that Streeter took no steps to have the writ of attachment discharged or to preserve his rights in any manner in the attachment proceeding, that he could not be heard to complain in the matter of the estate.
We think this is an erroneous view to take of the situation. The administrator was charged with a knowledge of the law. He knew, or is conclusively presumed to have known, that the money in his hands due to Buster, or to Streeter, the assignee, was not subject to attachment. Knowing this, it was his duty to refuse to deliver the check to the sheriff pursuant to the attachment. Neither Buster nor Streeter was under any duty to appear in the attachment proceedings. No lien was acquired in that proceeding. The administrator gave a bond for the faithful discharge of the duties imposed upon him as such. One of those duties was to pay the claim to Buster, or to one holding a valid assignment. He could not escape liability by making payment to some person not entitled to receive it legally. In the case of First National Bank v. Arthur, etc.,
3. The learned judge who disposed of the motion for a new trial seemed to have appreciated the force of this view, but, in his written opinion which is in the record, he states that the doctrine in Norton v. Clark could not be considered on a motion for a new trial, since section 6048, Rev. Laws, provides that the settlement of the account of an administrator shall be conclusive against all persons in any way interested in the estate.
We do not construe this provision of the statute as did *106 the learned judge. It is evident, that the statute refers to a judgment or order which is not attacked by motion for new trial, or by appeal, but not to one who has appeared and objected to the approval of the account, as did the appellant. To take any other view would result in practically denying the right of appeal to this court.
For the reasons given, the judgment and orders appealed from are reversed, and the case is remanded to the district court for further proceedings in accordance with the views expressed. Appellant to recover his costs.
Concurrence Opinion
I concur.
Concurrence Opinion
I concur. *108
Concurrence Opinion
I concur in the opinion relative to the rule of practice in respect to points raised for the first time on petitions for rehearing, but adhere to my former dissenting opinion herein.
Dissenting Opinion
Conceding that an administrator can receive no credit for disbursements which he made improperly, such as the payment of an allowed and approved claim against the estate at the instance of an attaching creditor of the claimant, nevertheless, where it appears that the owner of the claim seeks to falsify the account of the administrator for that reason alone, the burden is upon him to satisfy the court of his right to the fund. Having failed in this, I see no reason for reversing the order upon the single ground that the administrator exceeded his authority.
Addendum
"Any person interested in, affected by, and aggrieved at the decision and decree of the district court appointing an executor or administrator, revoking letters, allowing a final account, or disallowing it, decreeing a distribution or partition, order or decree, confirming or setting aside a report of commissioners, admitting or refusing a will for probate, and any other decision wherein the amount in controversy equals or exceeds, exclusive of costs, one thousand dollars, may appeal to supreme court of the state, to be governed in all respects as an appeal from a final decision and judgment in action at law."
It is said in the petition —
"that the amount in controversy does not equal or exceed, exclusive of costs, $1,000, but that the amount in controversy, exclusive of costs, is the sum of $80 and no more, as appears from the record in said cause on file with the clerk of the above-entitled court."
1, 2. It has been the universal practice to deny a petition for a rehearing when based upon a ground not urged upon the original hearing. In Re Forney's Estate,
The petition is hereby denied.