240 N.W. 904 | Minn. | 1932
Lead Opinion
The two appeals dismissed by the district court on the ground that the orders appealed from were nonappealable orders were (a) from an order vacating the widow's written assent to the will of deceased, and (b) from part of an order dated June 5, 1930, admitting the will nunc pro tunc as of June 13, 1929.
It is entirely clear that no appeal lies from the order vacating the widow's consent to the will. G. S. 1923 (2 Mason, 1927) § 8983; In re Estate of Hall,
"without prejudice, however, to the widow's application to the court for leave to withdraw her consent to the provisions of the said will and to renounce the provisions thereof. It is further ordered that the hearing as to the appointment of a general representative of said estate be passed for the present and taken up when the question of the widow's right in and to said estate is determined by this court." *630
So far as quoted no rights were determined by that part of the order appealed from and must be held nonappealable. But the notice then continues:
"and from all of that part making the same nunc pro tunc as to matters from which this appeal is taken, and further for the said court refusing to admit said will to probate and record in the whole thereof and without reservations, and further, appeal from all that part of the said order, judgment, and decree which deny the petition that the said Howard M. Betts be appointed as executor," etc.
The appellant does not challenge the admission of the will to probate, but merely the postponement of the court's determination of the validity of the widow's assent thereto; so no final determination of rights or interests in the estate is involved in that part of the order appealed from. The only other clause of the order appealed from is admitting the will nunc pro tunc — as of the day the hearing was had, formal proof was made, and the will allowed, but, through some inadvertence, the order allowing the same was not signed or filed. We fail to see any appealable issue in this part of the order inasmuch as appellant proceeds on the theory that the will was entitled to probate and should have been allowed as such. Of course he insists there was error in vacating the widow's consent, but that order is nonappealable. We think the district court rightly dismissed the two appeals already referred to.
The third order is appealable. After prolonged hearings the court refused to appoint appellant executor. He was named as executor in the will. He was mentally and physically competent. Such being the case, appellant maintains that the statute is mandatory that he be appointed. G. S. 1923 (2 Mason, 1927) § 8768, reads:
"When a will has been duly proved and allowed, the court shall issue letters testamentary thereon to the executor named therein, if he is legally competent, and accepts the trust and gives bond as required by law; otherwise, such court shall grant letters of administration with the will annexed." *631
The authorities appear to support appellant's contention that when the will is allowed the court must appoint the executor named in the will if legally competent. Kidd v. Bates,
There can be little doubt that had the executor named in the will been appointed immediately upon the allowance of the will no one would have been harmed, and needless and untimely litigation could have been avoided. There likely would have been no nunc pro tunc order allowing the will, the widow's renunciation would have been filed so that its timeliness could not have been questioned, *632 and the effectiveness of her assent to the will would have been reached for adjudication in due season. Now there has been the expense of a special administrator and his accounting, and after months of continuous litigation an administrator with the will annexed has been appointed, with no final determination of the rights of either of the two legatees, the only parties interested in the estate. In the present situation what disposition should be made of the appeal?
The courts below construed Corey v. Corey,
In this case the litigation already so extensively and unseasonably carried on to no great purpose has however established that an hostility now exists between the widow and the executor on a par with that in the Corey case,
The order refusing to appoint appellant executor and appointing the trust company mentioned administrator with the will annexed is affirmed.
Dissenting Opinion
I cannot concur in the foregoing opinion.
Addendum
After decision rendered herein on February 11, 1932, a rehearing was granted upon this question only:
"In view of the litigation already had, clearly indicating that further litigation will follow to determine the respective shares of the widow and the son of the deceased, the executor named in the will, is it improper practice to permit the administrator already appointed to remain such pending the litigation?"
The arguments presented upon the rehearing have convinced the court that the expedient adopted in the former opinion, to shorten the litigation by assuming what the courts below would do if the widow should persist in her endeavor to have an impartial representative in charge of the estate pending the future litigation which evidently is unavoidable, is not proper practice. G. S. 1923 (2 Mason, 1927) § 8790, provides for the removal of a representative for cause, one being when he becomes unsuitable for discharging the trust. This can of course be done only upon a hearing before the probate court, where the person who desires the removal must petition therefor, specify the grounds for removal, and prove them. There is the right of appeal from the decision of the probate court. In removal of an executor the court exercises judicial discretion, and it is not proper for this court now to assume what that will be when properly presented to the courts below. It has not been *634 so presented. G. S. 1923 (2 Mason, 1927) § 8768, as held in the opinion heretofore filed herein, is mandatory and requires the appointment of appellant executor, he being named as such in the will and being legally competent to act.
The order is reversed.
Addendum
Agnes C. Betts petitions the court to clarify the disposition of the appeal as left by the opinion on rehearing.
Three appeals from orders of the probate court were taken by Howard M. Betts, the executor named in the will of Lyman M. Betts. In the district court these appeals were consolidated for trial. The district court by its findings and order for judgment dismissed the appeals from two of the orders on the ground that they were nonappealable. By the first opinion rendered herein the ruling of the district court in that respect was approved, and neither the district court nor this court considered either of those two orders on the merits. The appeal to this court was from an order denying Howard M. Betts' motion for a new trial. In the motion the dismissal of the two orders was challenged, as well as the refusal to appoint him executor and appointing the Marquette Trust Company administrator with the will annexed. On rehearing the order denying a new trial was reversed.
6. Since the rehearing was granted solely on one proposition, relating to the appointment of the Marquette Trust Company administrator with the will annexed instead of Howard M. Betts, the executor named in the will, it should be clear that the reversal of the order appealed from results in remitting the case to the district court on the sole issue whether or not the executor named in the will is now legally competent to act as such, and if so found he should be appointed in place of the Marquette Trust Company, now acting as administrator with the will annexed. *635