24 Mont. 37 | Mont. | 1900
delivered the opinion of the Court.
Zimmerman, the public administrator of Lewis and Clarke county, has appealed from an order of the district court of that county, entered on June 3, 1899, refusing to appoint him administrator of the estate of William Craigie, deceased, and refusing to revoke letters theretofore issued to one Kenck.
In his petition for letters, filed on May 16, 1899, he states that Craigie, a resident of Lewis and Clarke county, died intestate in 1888, leaving an estate therein consisting of the sum of $4,046.79, which sum was at the time the petition was filed in the hands of T. J. Walsh, Esq., and subject to his charges and expenses as an attorney; “that the next of kin of said deceased, and whom your petitioner is advised and believes, and therefore alleges to be, the heirs at law of said deceased, are” certain persons residing without the state of Montana, whose kinship to the decedent is not specified; that he is the nominee in writing of a majority of said heirs, and is therefore entitled to letters. Annexed to the petition was the request of a majority of the next of kin that Zimmerman be appointed; and on May 31st there was filed a request, signed by the next of kin, that the letters theretofore issued to Kenck be revoked, and the public administrator appointed in his place. On the hearing the probate records disclosed these facts: On June 12, 1893, the court below directed Kenck, then public administrator, to take charge of and administer the estate of Craigie, which was then in the hands of the predecessor in office of Kenck, and ordered him to file a bond in the sum of $500. On the same day Kenck took the oath required, and letters were then issued to him. He did not, however, furnish the $500 bond. Thereafter Kenck, as
The appellant contends that the letters to Kenck should have been revoked, and his petition granted, upon any one of three grounds, namely: (1) Because Kenck never was the administrator of Craigie’s estate; (2) because his right to administer the estate ceased with the expiration of his term as public administrator, and appellant, as his successor in that office, is entitled to continue the administration; and (3) because the heirs and next of kin requested the revocation of the letters theretofore issued to Kenck, and the issuance of letters to the appellant. These points we shall briefly examine.
By the weight of authority, supported by sound reasoning, the failure of the person appointed administrator to give a bond does not ordinarily or usually make letters of administration void. They are for such reason only irregular and voidable. (1 Woerner’s Law of Administration (2d Ed.), Sec. 253, p. *546; 11 Am. and Eng. Ency. Law (2d Ed.), 868, and note 5; Ex parte Maxwell, 37 Ala. 362, s. c. 79 Am. Dec. 62.) In Power v. Lenoir, 22 Mont. 169, 56 Pac. 106, this Court held the order appointing the guardian of a minor to be without effect, and the letters of guardianship void, because the appointee neglected to give bond; but the decision in that case rests upon reasons different from those which control where is involved, as in the present proceeding, the effect of the omission to give a bond by one appointed administrator. Nor did the provision of section 825, supra, that, upon failure of the public administrator to give the bond required by the judge, his office should become vacant, create a vacancy upon the mere happening of that event. We do not believe ,that the legislature in enacting section 825 intended to provide that a public admistrator, who is already under an official bond of $10,000, and has otherwise qualified, should, after entering upon the discharge of his duties, forthwith forfeit his office, upon omission to give an additional bond required by the judge as further security for the interest of an estate in his hands. Failure to give the bond was cause for declaring a vacancy in the office, and upon a judicial ascertainment and declaration of such omission the office would have become vacant. In our opinion, the neglect to furnish
Although the Codes of 1895 do not contain a statute like section 825, supra, in respect of public administrators — if it now exists, it has not been called to our attention — we do not doubt the right of the court or judge to revoke letters upon failure of the administrator to give a bond required of him. While, section 825 was the law no effort was made to apply its provisions to Kenck, and since its repeal on July 1, 1895, no application has been made either to the eourt or judge to revoke the letters because of his neglect to file the bond; nor has the court or its judge of its or his own motion done so. The petition of the appellant does not in any way, directly or by suggestion, state that Kenck failed to give the bond; the request for revocation of letters and for the issuance of them to the appellant is equally silent. There was therefore a total absence in this regard of the statement of a ground for revocation. The appellant proceeded, doubtless, upon the erroneous assumption that the letters issued to Kenck were a nullity, and if such were the fact there would have been no occasion to aver his neglect to give the §500 bond; but since the letters were only voidable the court did not err, so far as appellant is concerned, in refusing to revoke the letters and appoint the appellant upon a ground which was not stated in the petition, although appearing upon the records of the court. Good pleading and fair practice demand the enforcement of the rule that the plaintiff or applicant must state in his complaint or petition the facts upon which he bases his action or proceeding, and be confined to them in making proof and obtaining relief. The present proceeding does not fall within any exception to this rule.
‘ ‘Sec. 70. When letters of administration have been granted to any person other than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them may obtain the revocation of the letters, and be
“Sec. 73. The surviving husband or wife, when letters of administration have been granted to a child, father, brother, or sister of the intestate, or any of such relatives, when letters have been granted to any other of them, may assert his prior right and obtain letters of administration, and have the letters before granted revoked in the manner prescribed in the three preceding sections.”
Upon referring to the petition of the appellant and the request for revocation, it is seen, not only that each of the heirs and next of kin is a non-resident, but that no one of the heirs or next of kin is stated to be the widow, child, father, mother, brother, or sister of the intestate. It is perfectly plain, therefore, that, if the laws which were in force when Kenck obtained letters are yet operative in this proceeding, the request for revocation, based upon the prior right of those making it, was without significance. Nor is the appellant’s standing bettered by the statutes now in force. Unless a person is bona fide a resident of the state, he is not, under the present law, competent to serve as administrator; he may, however, if incompetent by non-residence only, request the appointment of a resident, and letters may be issued to such resident. (Section 2434 of the Code of Civil Procedure.) Section 2446 prescribes that letters must be granted to any applicant, although “it appears that there are other persons having better rights to the administration, when such persons failed to appear and claim the issuing of letters to themselves. ’ ’ The order granting the letters determines the question of who is best entitled thereto, and this decision is final, except as to the persons presently to be mentioned. No person other than the surviving husband or wife, child, father, mother, brother, or sister of the intestate may subsequently obtain the revocation of letters for the reason that he or she is better entitled to them. This favored or privileged class is created by sections 2460 and 2463; the latter section be
The orders appealed from are affirmed. Affirmed.