188 P. 146 | Mont. | 1920
Lead Opinion
delivered the opinion of the court.
John T. Murphy died May 22, 1914, leaving a will by the terms of which one-fourth of his estate, after the payment of certain small bequests, was left to his wife, Clara C. Murphy, and the remaining three-fourths to a board of trustees, for the use and benefit of his children and grandchildren. The two daughters of deceased were each to receive the income from the one-third thereof until they reached the age of fifty years, when the principal would be turned over to them, or, if either married before reaching that age, such daughter would receive the one-half of her share on marriage, and the other half on attaining the age of fifty years. The income from the other third of the residue was to be divided between the son, John T. Murphy, Jr., and his two minor children; the children’s half of the principal to go to them equally on reaching the age of twenty-one, while the son (this appellant) would receive but the income during his lifetime, the principal to go to his children on his death. The will provided that the trust created should continue for a period of ten years, “and for such a reasonable period thereafter as may be necessary to enable my trustees to complete the trust confided to them, as herein provided, except to the extent, if at all, that the same shall be sooner terminated as to any one or more of my children, ’ ’ and provided for the successors to the trustees named.
On May 21, 1915, the executor filed his first annual account and report to the court, in which he recited, among other things t “By partial distribution: Clara C. Murphy, • 181,000; A. L. Smith, Massena Bullard, and Rolla P. Heren, trustees, $699,375,"’ which last amount was receipted for to the executor by the trustees named. June 1, 1915, was set by the court for hearing on the account, and notice thereof duly given by the clerk of the court. No exceptions were filed to the account, and no contest thereof instituted, and on the day set for hearing the account was approved, settled and allowed by the court. On September 3, 1915, the executor filed petition for order of partial distribution, relating, however, only to certain real estate sold by the trustees. The day of hearing was set and notice given; no objections were filed, and the order was duly made and entered on the day set for the hearing. On February 16,1917, the executor filed his final report and account and petition, setting forth that, all claims against the estate had been paid, as well as all the expenses of administration, showing distribution of the net income from moneys on hand to the children of deceased, including appellant, in the manner provided by the will, and distribution of the remainder of the estate to the widow and the trustees,, as follows: “Clara C. Murphy, * * * $152,035.92; * * * trustees, as per vouchers, * * * $456,107.74.” The report and account further show the only property remaining in the hands of the executor to be a note for $1,000, then in the bankruptcy court, which the petition alleged was of no value, and that the estate was ready to be closed. The executor further petitioned that final distribution of the estate be made and that he be finally discharged. February 27, 1917, was set as the day
On April 26, 1917, just within the sixty-day limit, under section 7713, Bevised Codes, appellant filed his notice of appeal from the final decree, in which he designates four appeals, and on which he filed four undertakings on appeal: (1) Prom the settlement of the account; (2) from the decree of distribution; (3) from the discharge of the executor; and (4) from the whole «of the decree.
The respondent contends that the appeal should not be entertained for the reason:
1. That there is no authentic record before the court for consideration; that there is no “bill of exceptions.” As there were
The transcript contains practically all of the papers in the probate proceedings, certainly all of the record in this matter which was, or could have been, used on the hearing; it is duly certified by the clerk of the court, who was the legal custodian ■of the records. This is a sufficient record and is properly authenticated. In In re Dougherty’s Estate, 34 Mont. 336, 86 Pac. 38, this court said: “"While there is no such thing, technically, as a judgment-roll in probate proceedings, the successive determinations in the course of them, whenever the statute directly or by implication declares them final, must be regarded as final judgments, and the portions of the record upon which they are based must on appeal be regarded as the record for the particular determination. It would be idle to require that they
It is not necessary to bring up the whole record of the lower court. (Estate of Healy, 122 Cal. 162, 54 Pac. 736; Estate of Osburn, 36 Or. 8, 58 Pac. 521; Estate of Reese, 9 Utah, 171, 33 Pac. 698; Estate of Levison, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479; Estate of Plunkett, 33 Or. 414, 54 Pac. 152.)
The record, authenticated by the clerk, is a sufficient record in all such cases; but here we have considerable more of the record than should have been certified to this court. The record upon appeal should consist only of the proceedings before the court at the time when the order complained of was made. (Estate of Delaney, 110 Cal. 563, 42 Pac. 981.) Errors in
2. Respondent asserts, also, that it does not appear from the record that appellant was a “party aggrieved” by, or person
It appears from the record that appellant was a son and heir at law of deceased, and that his rights were pecuniarily and
3. The respondent contends that the appeal cannot be
Section 7649 provides that “the settlement of the account and the allowance thereof by the court or judge," or upon appeal, is conclusive against all persons in any way interested in the estate, ’ ’ etc., except as to those laboring under some disability.
What, then, are the rights of an heir under the facts shown in the record; that is to say, where the heir sat calmly by and permitted the will to be probated, the several accounts and petitions of the executor to be settled and allowed, the estate to be fully settled, the assets distributed, and the executor finally discharged from his trust, before making any objection to the proceedings ?
The right of appeal rests solely upon statute (Estate of Tuohy, 23 Mont. 305, 58 Pac. 722; State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 Pac. 589; In re Searles, 46 Mont. 322, 127 Pac. 902), and is therefore dependent upon compliance with the provisions of the statutes (Woerner on Wills and Administration, pp. 1192, 1198; Creek v. Bozeman Water Co., 22 Mont. 327, 56 Pac. 363).
Section 7712, likewise provides that “the provisions of Part II * * • relative to new trials and appeals — except in so far as they are inconsistent with the provisions of this Title— apply to proceedings mentioned in this Title.”
Section 7714 declares that “all issues * * * joined in probate proceedings must be tried in conformity with the requirements of Article II, Chapter II of this Title” — which Article deals with the contest of wills, and provides for the filing of written objections and the joinder of issue and trial in contest proceedings.
We find, then, that unless otherwise provided for in the Title on probate proceedings, the rules of practice in civil actions apply to and govern the practice in probate proceedings, and that all issues joined in probate proceedings must be tried in conformity with the requirements laid down for the trial of will contest cases. We find, further, that in probating an estate the executor or administrator must make accounts and reports of his actions to the court, and that, when the same are filed, the court must set a day certain for a hearing thereon, at which time any part^ interested may file written exceptions to the account and contest the same. These are positive provisions of the Chapter on probating estates, and are also in conformity with the practice prescribed for the contest of a will. That all parties interested may be advised and given the opportunity to appear and file exceptions, the clerk of the court is required by section 7646, Revised Codes, to post notice of the date set, reciting all the facts necessary to advise the interested- parties of what has been done and what it is proposed shall be done at that time in the estate matter.
Section 7407, Revised Codes, provides for the contest of a
But it is contended, in argument, that this proceeding is not
The rules of practice in civil actions are expressly made applicable to probate proceedings (sec. 7711, Rev. Codes), as are the provisions relative to new trials and appeals (sec. 7712). In civil actions, the general rule is that the appellate court will only consider such questions as were raised in the lower court; the all-sufficient reason for the existence of the rule being that, had the question been raised in the lower court, the objection might easily have been remedied there. (2 R. C. L., sec. 52, pp. 69-71.)
The question of the validity or invalidity of the provisions of the will complained of should have been raised by appropriate proceedings in the district court, under the statutes providing therefor, and where the question could have been heard and determined, and from which determination an appeal would lie to this court.
This proceeding depends for its foundation on the allegation that the will is, as to the provisions mentioned, illegal and void. In the case of Dean v. Swayne, 67 Kan. 241, 72 Pac. 780, the facts were somewhat similar, and the relief sought almost identical with the case before us. Decedent having left his property to his sister, who was a member of an Order of Sisters in England, and provided that in case of her death before that of tes
Having failed to contest the will within the time allowed by law, appellant was foreclosed to thereafter contest its validity, and cannot now be permitted to do by indirection what he could not do directly. It is not necessary that we here determine whether the question could have been raised on objections filed in writing to the settlement of the final account of the executor; objections were not filed, and again the appellant was in default, and now stands in the same position as a defaulting defendant
This precludes appellant from attacking the validity of the
Mr. Schouler in his work on Wills, Executors and Administrators, fifth edition, section 1472, says: “In order to carry out special provisions under a will, which look to the preservation of a principal fund for special schemes, such as charity, or so a» to pay income only to certain persons designated, until the happening of some event, or so that the fund may accumulate, and generally where the intent is to postpone the full beneficial vesting of the legacy in the ultimate legatee, trustees are usually designated under the will to hold and manage the fund, apart from the executors. These trustees are subject to the approval, direction and sometimes selection of the courts of equity; and properly speaking * * * the administration of these testamentary trusts is a branch, and quite an important one, of equity jurisdiction. * * * In many parts of the United States, however, the probate courts in the several counties have general equity powers, conferred by statute, and exercised concurrently
In section 609, Schouler, after stating that trustees should qualify and obtain the sanction of the court, states: “The executor transfers the trust fund to the trustees thus officially vested with authority to receive it, crediting himself in his accounts accordingly and closing the accounts when his functions are fully performed; and the trustee, returning his own inventory and regular accounts from time to time, carries on the bookkeeping ■of the estate, or rather the fund under his own direction, as matter of public record, and under the supervision of the court ■of probate and of the appellate tribunal which exercises probate and equity jurisdiction, until the trust is completely discharged.”
Complaint is made that the estate was not ready to be closed,
Other irregularities appear in the proceedings, but do not affect the rights of the appellant, and are therefore not considered. We find no error in the action of the court below, sitting
Affirmed.
Rehearing
On Motion for Rehearing.
(Decided March. 14, 1920.)
delivered the opinion of the court.
Appellant has filed a petition for rehearing, urging that the opinion herein is in direct conflict with the rules heretofore established by the court, citing In re Fleming’s Estate, 38 Mont. 57, 98 Pac. 648, and In re Robbins’ Estate, 41 Mont. 39, 108 Pac. 7. We do not so view the matter. Nothing in the opinion is intended to, nor do we believe that it does in any manner, conflict with the rules laid down in the cases cited.
In the Fleming Estate Case, this court held that the question of heirship, title or interest in an estate could be raised in either of two proceedings: First, as provided for in sections 7670, 7671 and 7672, Revised Codes; or, second, in a contest upon final distribution of the estate — and that those provisions are exclusive of every other procedure for determining such questions.
The Robbins’ Estate Case held that the validity or invalidity of specific bequests or devises may not be determined in a will contest under the statute, the court stating that “the issue indicated may be tried and determined in appropriate proceedings instituted after the will is formally admitted to probate.”
In the instant case we held, in effect, that where an estate has been fully and finally settled, and the property thereof distributed in its entirety, under the terms of a will, one who has acqui
Under similar conditions, the supreme court of California, in the case of McGavin v. Orphans’ Asylum Soc., 34 Cal. App. 168, 167 Pac. 182 (1917), reached the same conclusion, and closed its opinion with the statement: “It must be remembered that a decree of distribution is a judgment in rem, and, although erroneous, is as conclusive against one who fails to appear, having the opportunity so to do, as it is against a party whose fault produced the error” — citing cases.
Appellant attempts in his petition for rehearing, for the first time, to question the sufficiency of the notice of the hearing on the final account. It is the universal rule — and this court has repeatedly held — that the court will not consider grounds not.
The motion for a rehearing is denied.
