188 P. 633 | Utah | 1920
In March, 1917, Peter H. Hansen, appellant, was appointed administrator of the estate of Anna S. Helin, deceased, by the district court of Salt Lake county. In May, 1918, the appellant, as administrator, filed' a petition for an order to sell
The court, in July, 1919, denied the petition for sale of the real property. The court was, however, of the opinion that the protest on the part of Jones and the reply by the administrator were sufficient to present the question whether the title to the property held by Jones had been procured or obtained by fraudulent or unfair means; that the court could and should therefore determine the issues thus presented, and ascertain what interest, if any, the estate had in this particular property, and for those reasons made an order that a hearing on said issues be transferred to the equity calendar of the district court. The administrator, it seems, filed a written demand for a jury to try such issues. However, no jury fee accompanied such demand, and consequently no
One Mary C. Hansen held a judgment against the deceased, and that judgment had been presented to the administrator, as a claim against the estate, and allowed for an amount in
In October, 1919, the cause came on for hearing. The court definitely announced to counsel that the only question at issue, and the only one to be adjudicated at that time, was the title to the property, and declared that, no matter what the pleadings might be designated, they, nevertheless, presented a cause of action, and a liberal construction would be given to the pleadings to determine that issue. The court, at the same time, stated to counsel that the reply on the part of the administrator would be considered in the nature of a complaint, asking relief in the way of having the property declared part of the assets of the estate, or, at least, to determine what interest, if any, the estate had in such property; that the protest on the part of the respondent would be considered in the nature of an answer to the complaint. During the hearing, in an effort to ascertain the administrator’s theory of the proceedings, the court addressed this remark to his counsel:
“Just what are you going to try to allege here? I would like to give you all the leeway that the court can; I would like to do justice between the parties. Are you going to try to prove that this deed was a mortgage and set it aside?”
■ Counsel answered:
“Not yet. Not going to set it aside; no, sir. We are not going to try to set it aside.”
The court, doubtless at a loss to understand counsel’s theory of the prqceedings, permitted him to introduce all the testimony offered by him.
There was, however, a total absence of proof which, considered most favorably to the administrator, would in any way tend to impeach the contract or the deed.
Counsel for the administrator seemed to be of the opinion that, the estate having claimed the property (notwithstanding the respondent was in possession and held a
"We remark in closing this opinion that the district court exercised a great deal of patience, and seems to have been extremely liberal in its efforts to enable the administrator to present any testimony which would enlighten the court upon the real situation existing at the date of the execution of the contract and the deed, and to establish any fact showing that the estate had an.y interest in the property, but, for some reason not apparent, counsel for the administrator seems to have been determined that he would produce no such testimony. The court, as a consequence, could grant him no relief. At the close of the testimony offered by the administrator the court did the only thing it could do, namely, enter an order dismissing the petition. It necessarily follows that the order or judgment should be affirmed.
It is probably unnecessary to add, but, in view of the admitted incompetency of the son of the deceased, it may not be amiss to say, that the judgment of the district court, dismissing the petition of the administrator or the affirmance of that order by this court, does in no way affect or determine the limitations contained in the contract upon respondent Jones’ possession or ownership of this property. His right to incumber it or alienate it during the life of Peter ITelin of necessity must be controlled and governed by the provisions of the contract made with the deceased.
It appears from the record that there is no property in the