27 Mont. 235 | Mont. | 1902
delivered the opinion of the court.
Motions to dismiss appeals. On February 9, 1901, ITenry A. Root, Ellen S. Cornue, Joseph A. Coram, and Sarah Maria Cummings filed their petition in the district court of Silver Bow county, in the matter of the estate of Andrew J. Davis, deceased, which had for some years been pending for settlement in said court, asking that $100,000 in money and 100 shares of bank stock, then in the hands of John H. Leyson, administrator, be distributed to the persons interested in said estate, in shares in proportion to their respective interests. The said Andrew J. Davis died testate in Silver Bow county on March 11, 1890. Under the terms of his will, John A. Davis, a brother, was made sole legatee, after the payment of several small legacies specifically provided for. When the will was presented for probate, certain of the next of kin interposed contests. These contests were pending until March 27, 1895; John A. Davis, the proponent of the will, having in the meantime died, and John E. Davis, his son, having been appointed his administrator. On the latter date, by compromise agreements, to* which, it seems, all the next of kin claiming an interest in the estate, except those hereafter mentioned, or their assignees or representatives, were parties, these contests were settled, and by a decree of that date the will was admitted to probate. The decree also determined the respective shares to which, under the agreements, the estate cf John A. Davis, the residuary legatee, and each of the contestants, were entitled. John H. Leyson was then appointed administrator with the will annexed, the administrator of John A. Davis having been permitted by an order of court to effect the compromise on behalf of the estate of his father. Thereafter still another contest was instituted by other next of kin of Andrew J. Davis. After pending for some time this contest was also settled by compromise agreements, the respective shares of the various claimants being declared or decreed as follows, subject to the payment of the specific legacies provided for in the will: That John E. Davis, as adminis
The petition sets forth with particularity all these proceedings. It further alleges that m'ore than twelve months have elapsed since the publication of the notice to creditors as provided by law; that there are now in the hands of the administrator about $115,000 in money, besides said bank stock; that all special bequests provided for in the will have been paid; that there are no claims against the estate, except the expenses of administration, accrued and to accrue; that the sum of $25,-000 will be sufficient to meet all demands of this character; that the said money and bank stock can safely be distributed, without injury to the estate, or any claimant of an interest therein; and that prior to the filing of the petition said Elizabeth S.Ladd, with her husband, Charles II. Ladd, and Mary Louise Dunbar, had, for a valuable consideration, assigned, transferred and conveyed their interests in the estate to the petitioner, Joseph A. Coram, who is now entitled to receive, the same. It is also stated that Harriet Wood is dead, and that one Harriet Holton is her successor in interest. Subsequent to the filing of the petition, Harriet H. Sheffield and Henry A. Davis appeared by counsel and joined in the prayer thereof.
Thereupon, after notice, John H. Leyson, administrator, and John E. Davis, administrator of John A. Davis, appeared and filed separate answers to the petition. The petitioners then
1. The principal ground of the motions directed at the appeals from the order of distribution is that an appeal does not lie in favor of either of the appellants, because they are not aggrieved by the action of the court in granting the order. Counsel say that the administrator of the estate has no interest by virtue of which he may exercise the right of appeal, and that John E. Davis is not aggrieved, because the share to which the estate represented by him is entitled will be retained by the administrator until final distribution. These are questions which cannot be considered upon these motions. Speaking generally, a motion to dismiss an appeal can present but two questions, viz., whether the appeal lies from the particular order or judgment, and whether, if it does, the appellant has failed to secure it by neglecting to pursue the procedure necessary to that end, or has lost it by neglecting to prosecute it as required by the statute and the rules of this court. If it appears from the record that the appellant was a party to the proceeding in the court below, from a final determination of which an appeal lies, and that he has properly perfected and prosecuted an appeal from the final judgment or order entered therein, this is a sufficient reason why the motion to dismiss the appeal should be denied. He is a “party aggrieved,” within the meaning of Section 1721, Code of Civil Procedure, granting the right of appeal to such party from any of the orders enumerated in Section 1722, as amended by Session Laws of 1899, p-. 146, and whether or not he has been in fact prejudiced or aggrieved by the particular order or judgment is a question to be determined after a hearing upon the merits.
The application to the trial court was made under the pro
But whether the reasons be there correctly stated or not, the fact remains that the administrator falls within the provisions of the statute. It was so held by this court upon application for a writ of review to have annulled the order now before us. (State ex rel. Leyson v. District Gourt of Second Judicial Dist., 26 Mont. 378, 68 Pac. 411.) The same is true of the representative of the estate of John A. Davis. He has a vital interest in the disposition of the assets of the estate, and falls within the same category with the administrator. None of the other .grounds of the motions challenge the right of appeal, but present questions which can be determined only after a careful examination of the record, and by a decision of questions which go to the merits of the controversy. This may not now be done, whether there be merits in the appeals or not. The motions directed at the appeals from the order of distribution must therefore be denied.
2. The questions presented by the motions to dismiss the appeals from the order denying a new trial are more difficult, but we think they-must also be denied. The grounds of the motions are that under the statutes of Montana no such practice is known as a motion for a new trial in a case or proceeding of this character, and that there could not have been a re-examination of any issue of fact, within the meaning of the statute (Code of Civil Procedure, Section 1170), because all the material facts alleged in the petition were admitted. The argument of respondent is that upon application of this character no issues of fact can arise, a re-examination of which may be had upon a motion for a new trial, and that, even if such an issue could arise, the wording of Section 2835, supra> implying that the hearing may be had before the court or judge, contemplates a method of procedure inconsistent with the provisions of Part II of the Cbde, which provides for trials by the court only, with or without a jury, and never by the judge. Sections 2921, 2923 and 2924 of the Code of Civil Procedure provide:
*242 “Sec. 2921. Tbe provisions of Part II of this Code, relative to new trials and appeals — except in so far as they are inconsistent Avith the provisions of this Title — apply to the proceedings mentioned in this Title.”
“Sec. 2923. All issues of fact joined in probate proceedings must be tried in conformity with the requirements of Article II, Chapter II, of this Title, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. Judgments therein, on the issue joined, as well as for costs, may be entered and enforced by execution or other-Avise, by the court or judge, as in civil actions.”
“Sec. 2924. If no jury is demanded, the court or judge must try the issues joined. If on Avritten demand a jury is called by either party, and the issues are not sufficiently made up by the Avritten pleadings on file, the court- or judge, on due notice to the opposite party, must settle and frame the issues to be tried, and submit the same, together Avith the evidence of each party, to the jury, on which they must render a verdict. Either party may move for a new trial, upon the sam© grounds and errors, and in like manner, as provided in this Code for civil actions. If the trial of the issues joined requires the examination of an account, the court or judge must try the matter or refer it, and no jury can be called.”
The language of the latter tAVO of these sections is very positive and comprehensive. By reference to Article II, Chapter II, of this Title (Title XII), Ave find that its provisions contemplate the same procedure, in all essential particulars, as is required in Part II, relating to trials in civil actions. These pro-visionsj therefore, not only permit, but seem to require, all issues of fact to be tried by the court, with or without a jury, at the option of either party, except in so far as other provisions may be found in this Title with which they are inconsistent. The only provision Avhich seems to be inconsistent with this theory is the provision contained in Section 2913, which declares that all orders mentioned in this Title and all proceedings in matters of probate may be made or heard before the court or judge at chambers-, and that Avhen a jury is needed the court or
If this is the correct theory, — and we think it is, — then, whenever an issue of fact is made, and the trial is had in the ordinary way, a motion for a new trial will lie, and a re-examination of the issues may be had. “It would be impracticable to enumerate the cases in viiich a motion for a new trial is appropriate in probate proceedings, but it may be stated generally that whenever the action of the court which is invoked is dependent upon the existence of certain extrinsic facts which are-presented to it for determination in the form of pleadings, and are to be decided by it in conformity with the preponderance of the evidence offered thereon, an issue of fact arises, which, after its decision, may be re-examined by the court upon a motion for a new trial.” (In re Bauquier’s Estate, 88 Cal. 302, 26 Pac. 178, 532.) The general rule thus stated is in conformity with the spirit of the provisions under consideration. At the same time it is clearly the policy of the Title relating to probate practice and proceedings that all dilatory proceedings should be curtailed as far as possible. Under the rule above stated, we think a-motion for a new trial was proper in the present case, for a trial ivas had upon supposed issues made up by formal pleadings.
It is said by counsel that there was in fact no issue made up by the pleadings which the court could try upon an application of this kind, because all the material facts were admitted. If
As to' the right of .appeal from the order there can be no controversy. This is gi anted under Subdivision 2 of Section 1722. This provision applies to matters in probate proceedings as well as to ordinary civil cases. (Estate of Tuohy, 23 Mont. 305, 58 Pac. 722; In re Bouquier’s Estate, 88 Cal. 302, 26 Pac. 178, 532.)
The motions are therefore denied.
Denied.