In Re Cameron's Estate

284 P. 143 | Mont. | 1930

Prior to the amendment in 1895, of what is now section 10072, Revised Codes 1921, by adding subdivision two thereof, it was held that since a nonresident was not competent to act as administrator, a request for the appointment of a resident of the state by a nonresident belonging to one of the favored classes mentioned in section 10068, had no legal significance in so far as it attempted to confer a right to appoint an administrator. (State v. Woody, 20 Mont. 413, 51 P. 975; In re Craigie'sEstate, 24 Mont. 37, 60 P. 495.)

Section 1379, California Code of Civil Procedure, is exactly like our section 10082, but California has no code provision similar to subdivision 2 of section 10072, and the supreme court of that state has consistently held that a nonresident of California has no right to nominate a resident thereof to act as administrator. (11 Cal. Jur., sec. 111, p. 345.)

Since the nominors of Sam Stephenson are all nonresidents of the state, he cannot claim any rights under section 10082, but his right to letters of administration is confined to the rights given to his nominors by subdivision 2 of section 10072. To hold that section 10072, confers a greater right than does 10082, would give a nonresident of the state a greater right than a resident thereof. This could not have been the intention of the legislature when subdivision 2 of section 10072 was enacted, but on the contrary, it is evident that the rights conferred upon nonresidents by subdivision 2 above, are not as broad as the rights conferred upon residents of the state by section 10082, for the reason that section 10072 gives the right to nominate only to the first five classes mentioned in section 10068, while section 10082 gives the right to nominate to any "person entitled," to letters and does not limit the right to the first five classes of section 10068. Furthermore, the permissive word "may" is used in section 10072, the same as in section 10082.

Since the rights conferred by section 10072, can be no greater than the rights conferred by 10082, the decisions defining the rights given to resident nominors by section 10082, and similar statutes of other states, can be relied upon to define the rights secured to nonresident nominors by subdivision 2 of section 10072.

The right of nomination secured by section 10082, is a permissive right addressed to the discretion of the court, and is not mandatory upon the court. (Melzner v. Trucano, 51 Mont. 18,149 P. 365; In re McLure's Estate, 63 Mont. 536,208 P. 900; Estate of Daggett, 15 Idaho, 504, 98 P. 849; 11 Cal. Jur., sec. 112, p. 347.)

Under the rule laid down by the foregoing authorities, the request of the three nonresident daughters of the decedent for the appointment of Sam Stephenson, was addressed to the discretion of the court and whatever right to letters Sam Stephenson has is not mandatory upon the court. On the other hand, the rights given to Alexandera Fillian, as a competent member of the favored class mentioned in section 10068, supra, is mandatory upon the court and it had no discretion in the matter. (In re Ming, 15 Mont. 79, 38 P. 228; In re Estate of Nix,66 Mont. 559, 213 P. 1089; State ex rel. Eakins v. DistrictCourt, 34 Mont. 226, 85 P. 1022; In re Estate of Myers,9 Cal. App. 694, 100 P. 712; Estate of Meier, 165 Cal. 456, Ann. Cas. 1914D, 121, 48 L.R.A. (n.s.) 858, 132 P. 764; 11 Cal. Jur., sec. 87, p. 313.) Therefore when the court in this case was confronted with a permissive right of Sam Stephenson, addressed to its discretion, and the mandatory right of Alexandera Fillian, it is obvious that the right addressed to the discretion of the court was entitled to no consideration whatever.

The foregoing argument might appear to conflict with the decision in In re Estate of Welscher, 77 Mont. 164,250 P. 447. The facts in that case differ from the facts in the instant case, in that two of the nominors in the Welcher Case were sons whereas in the instant case, the nominors are all nonresident daughters. The Welscher Case was ruled by section 10069, which provides that "of several persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to those of the half blood." Since males are entitled to a preference over females, under section 10069, that section qualifies subdivision two of section 10068, and related sections, so that in a contest between a brother and a sister, the brother in effect, belongs to the superior class. Therefore, in determining the rights of a brother against a sister, the same rule that governs a contest between members of any class mentioned in section 10068 and the next succeeding class thereof is applicable.

The supreme court of California has consistently recognized the distinction between the mandatory or absolute rights conferred by section 1365, California Code of Civil Procedure, which is exactly like our section 10068, and the permissive right addressed to the discretion of the court conferred by its section 1379, which is exactly like our section 10082, — yet whenever that court has been confronted with the question presented by the facts in the case of In re Estate of Welscher, supra, it has found the distinction, recognized between the mandatory rights of the members of the preferred classes and the permissive rights of the nominee addressed to the discretion of the court, no obstacle in holding a nominee of a member of a superior class as entitled to letters in preference to a member of an inferior class. (Estate of Bedell, 97 Cal. 339, 32 P. 323; In re Dow'sEstate, 132 Cal. 309, 64 P. 402.)

Whether the right to nominate conferred by the statute is defined as a right addressed to the discretion of the court or a mandatory right in a contest between the members of one of the preferred classes named in the statute and a nominee of one or more other members of the same class, the courts have held that a nominee is not placed in the shoes of his nominor or nominors so that his right to letters would be coextensive with the rights of a member belonging to the same class as his nominor or nominors. (Watkins v. Watkins' Admr., 136 Ky. 266,124 S.W. 301; Moran v. Moran's Admr., 172 Ky. 343, 189 S.W. 248;Justice v. Wilkins, 251 Ill. 13, 95 N.E. 1025.) The question involved is whether or not the nominee of three nonresident sisters may, in the exercise of discretion by the court, be appointed administrator with the will annexed of an estate in which a resident sister also seeks appointment and, if so, whether or not the court in this instance abused its discretion in appointing the former.

The whole matter is decided by a proper interpretation of our statutes, together with an interpretation of the California statutes.

The interpretation of these statutes as made by this court in an opinion rendered by Chief Justice Callaway, in the case of Inre Estate of Welscher, 77 Mont. 164, 250 P. 447, is decisive of the question here involved. The lower court has followed the supreme court's analysis of these statutes as set forth in theWelscher Case. The reasoning of that case is so conclusive of the issue here involved that a discussion of it seems unnecessary. Kate Cameron died testate in Cascade county, leaving personal estate. The person named as executor in her will had predeceased her. Alexandera Fillian, a daughter of decedent, and Sam Stephenson, the nominee of three nonresident daughters of decedent, on the same day severally filed a petition for letters of administration with the will annexed. Each of the applicants is a resident of Cascade county, and each is qualified to receive letters of administration upon the estate. The court denied the application of Mrs. Fillian, ordering letters issued to Mr. Stephenson. Mrs. Fillian has appealed.

The single question presented is, Had the court the discretionary power to appoint either the nominee of the nonresident daughters or the resident daughter, or was it mandatory to appoint the resident daughter?

Section 10068, Revised Codes 1921, provides:

"Administration of estate of all persons dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate, or some portion thereof, and they are, respectively, entitled therein in the following order:

"1. The surviving husband or wife, or some competent person whom he or she may request to have appointed.

"2. The children.

"3. The father or mother.

"4. The brothers.

"5. The sisters. * * *"

Section 10072, Id., provides: "No person is competent or entitled to serve as administrator or administratrix who is: * * * 2. Not a bona fide resident of the state; but if a person otherwise entitled to serve is not a resident of the state, and either the husband, wife, or child, or parent, or brother, or sister of the deceased, he may request the court or judge to appoint a resident of the state to serve as administrator, and such person may be appointed, but no other nonresident than a surviving husband, wife, or child, or parent, or brother, or sister shall have such right to request an appointment, and the court or judge must order letters issued to the applicant entitled thereto under the provisions of this chapter."

The nomination of the surviving husband or wife, regardless of residence is absolute if the person nominated is competent. (Sec. 10068, supra; In re McLure's Estate, 63 Mont. 536,208 P. 900, and authorities therein cited.) Under section 10072, except as to the husband and wife, nominations made by the others specified therein may or may not be absolute, depending upon the conditions presented.

In re Estate of Welscher, 77 Mont. 164, 250 P. 447, 448, it was held that the nominee of the nonresident sons of the decedent was entitled to preference over a resident daughter. In that opinion we called attention to the fact that residence alone is not controlling, and said: "If it were, the nominee of a surviving wife, a nonresident, could not prevail over the application of the husband's brother, a resident; and the nominee of a nonresident brother of the decedent would [not] prevail over a resident nephew of the decedent." Through a clerical error the word "not," here inserted in brackets, was omitted.

Subdivision 2 of section 10072 gives a nonresident child the right to request the appointment of a resident of the state to serve as administrator, and concludes with the statement that "the court or judge must order letters issued to the applicant entitled thereto under the provisions of this chapter," which certainly does not clarify the matter. We do not find any statute that a resident child is entitled to preference over the resident nominee of the nonresident child. The legislature might have spoken to that effect, but it has not. In either case the administrator will be a resident of this state, presumably under the eye of the court and subject immediately to its orders.

After a careful comparison of our statutes, we are constrained to the opinion that the question presented called for an exercise of judicial discretion. Evidently the court took the view that the strongest ground for preference was the preponderance of interest, and in so doing we cannot say that it erred.

In re Myers' Estate, 9 Cal. App. 694, 100 P. 712, is strongly relied upon by counsel for the appellant. In that case the heirs of decedent were three daughters, all residing in California. One applied for letters, while the other two requested the court to appoint a grandson of deceased. The court held that, by requesting the appointment of another, the two daughters renounced their own right to administer, and the right of the petitioning daughter became absolute. We think the decision correct, but California has no statute similar to our subdivision 2, supra. Here the three nonresident sisters did not renounce the right to administer, for they did not have that right. It is idle to argue that they might have had the right upon coming to Montana and establishing a residence here (Estateof Nix, 66 Mont. 559, 213 P. 1089), for no such question is presented. The nonresident children simply exercised the right given them by statute to request the appointment of a resident of Montana to administer their mother's estate. We see no good reason for holding that the statutory right given a nonresident "who otherwise would be entitled to administer" is not as potent to invoke the court's action as is the statutory right of a resident of the same class.

Our attention is called to section 10083, Revised Codes 1921, reading as follows: "When letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration, by presenting to the court a petition praying the revocation, and that letters of administration be issued to him."

The argument is made that, letters being granted to Stephenson, who is not one of the persons enumerated in this section, Mrs. Fillian may at once obtain the revocation of his letters, and have letters issued to her. However, this court has said that this statute "is not absolute and available at all times, under all conditions." (Melzner v. Trucano, 51 Mont. 18,149 P. 365, 367.)

The argument overlooks the fact that section 10072 was enacted subsequently to 10083, and if there is a conflict, 10072 will control. If we are correct in saying that the right conferred upon the nonresident daughters invokes the court's discretion between the application of their nominee and the application of the resident daughter, it would be absurd to hold that the court's action under section 10072, denying appellant letters, could be immediately circumvented by appellant under section 10083.

It must be kept in mind that Stephenson, the nominee of the three daughters, was appointed pursuant to the terms of an applicable statute. Section 10083 intends that, when an inferior class obtains letters, one of a superior class may, the conditions being favorable (Melzner v. Trucano, supra), invoke and secure its benefit.

The order is affirmed.

ASSOCIATE JUSTICES MATTHEWS, FORD and ANGSTMAN concur.

HONORABLE C.W. POMEROY, District Judge, sitting in place of MR. JUSTICE GALEN, absent on account of illness, dissents