15 Mont. 79 | Mont. | 1894
Lead Opinion
— This writ of habeas corpus is accompanied by a writ of certiorari, whereby all the proceedings leading up to the order for the commitment of relator are brought before this court. Thereby it appears that John H. Ming died in the year 1887, leaving, as heirs, Katherine L., widow, and John
Counsel for relator contend that, by the terms of the will, said estate was transferred to the executrix as a trustee, and in that capacity alone she was holding and managing the same until the time for final distribution thereof; and that after the probate of the will, the filing and recording of the inventory and appraisement, the notice to creditors, and the report showing settlement of their claims, etc., as was shown by the executrix’s report of 1889, her further possession and management of said estate was in the cajjacity of trustee solely; and it is set forth in the application for writ of certiorari that she neglected to make reports of the condition of said estate to the probate court after the report of 1889, because her counsel advised her that no reports were required by law as she was merely trustee in charge of the property of said estate, awaiting time for distribution. But we shall not enter upon the consideration of that point, because we deem it unnecessary in this proceeding. This was not a ease for reference. The executrix made report concerning the affairs of said estate, covering the period intervening since her last report of 1889; and the same was not only uucontested, but was accompanied by the approval of all the heirs interested in said estate, all of whom were of the age of majority. Such was the showing, and therein no ground appears, in reference to said report, for the suspension or removal of the executrix; nor was there any objection raised in reference to the report on which an issue was formed for reference. (Probate Practice Act, §§ 113-15, 267-70; In re Russy’s Will, 14 N. Y. Supp. 177.) Nor were the allegations contained in the pleadings, on file in the district court as aforesaid, ground for the removal of the executrix. The matters there set forth pertained to transactions wherein, as alleged, the heirs interested in this estate have joined in executing a mortgage of their respective interests in certain property thereof, to secure certain indebtedness. If competent to act a person interested has power to assign or convey away his or her interests in an es
By the same order whereby the executrix was temporarily removed the court appointed Joseph N. Kenck, public administrator “as. special administrator to take charge of said estate, and execute the provisions of said will in reference to said estate,” and ordered “that special letters of administration, with the will annexed, issue to him.” Immediately thereafter, and as soon as said order came to the knowledge of the Ming brothers, John H. Ming petitioned the court to revoke the appointment of Kenck as such special administrator, and at the same time made formal application for appointment of John H. as special administrator of said estate. In that petition for such appointment John H. Ming was supported by James L. and Katherine L. Ming. But it appears that petition was not entertained, or, as it is alleged in these proceedings, no action was taken thereon, although the same was presented to the court, and the court was asked to hear and act upon said petition. Thereupon writ of certiorari was sued out on behalf of John H. and James L. Ming, to review the
There being no appeal from an order appointing a special administrator, it has been held that certiorari would lie to review the jurisdictional question involved in such appointment. (Probate Practice Act, § 97, Comp. Stats., p. 296; In re Murphy, Pub. Admr., 11 Mont. 401.) On the subject of appointment of a special administrator the statute provides, in section 55 of the Probate Practice Act, that letters of administration “must be granted to some one or more of the persons hereinafter mentioned, who are respectively entitled thereto, in the following order: 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed; 2. The children; 3. The father and mother; 4. The brothers,” etc. This section prescribes, in ten subdivisions, the order in which certain persons have a right to succeed to the administration of an estate. Section 95 of the same act provides that “when there is delay in granting letters testamentary or of administration from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an administrator or executor dies or is suspended or removed, the probate judge must appoint a special administrator to collect and take charge of the estate of the decedent, in whatever county or counties the same may be found, and to exercise such other powers as may be necessary, for the preservation of the estate, or he may direct the public administrator of his county to take charge of the estate.” And section 97 of the same act further provides: “ In making the appointment of a special administrator the probate judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the appointment.” Under these statutory provisions we think it clear that, when
In' relation to the Davis estate occasion arose for the appointment of a special administrator. There were next of kin entitled to apply for such appointment, such as brothers and nephews of decedent; but the court went outside of those relatives and distributees of the estate, and appointed a person whom the court deemed suitable for that office. Thereupon all the heirs and distributees who could have demanded such appointment precedent to the one appointe¶, as well as to the public administrator, tacitly acquiesced in the appointment made by the court. One of the heirs who had applied for appointment as special administrator ceased to prosecute his petition, and no other relative of decedent who might have claimed such appointment applied for the same. Nothwithstanding this tacit or implied concurrence of all the heirs in the appointment made by the court, the public administrator sought to overcome that arrangement, and compel appointment of himself. The conclusion and holding of this court in that case (State ex rel. Murphy, 11 Mont. 401) was that, as between the public administrator and the appointee, under such conditions, the public administrator was not entitled to the appointment. That case involved no such question as is here presented; nor was there involved therein the consideration of the question whether the appointment of the public administrator (if it had been made in that case) could have been sustained against the demand of heirs and distributees for appointment, in the order provided by statute. But to sustain the appointment of the public administrator in this case would be to hold that, in case the court had put the vast estate of Andrew J. Davis into the charge of the public administrator, when occasion arose for the appointment of a special administrator, that appointment must have been sustained against the demand of the heirs and distributees for the appointment, even though all of them joined in petitioning the court for the appointment of one or
As a result of our consideration of the proceedings here presented it will be ordered: 1. That petitioner in the writ of habeas corpus, Katherine L. Ming, be discharged from custody; 2. That the order of the probate court appointing Joseph N. Kenck as special administrator of said estate, with the will annexed, be vacated and set aside.
Dissenting Opinion
dissenting. — The application of Mrs. Ming for writ of certiorari, on July 28, 1894, and her application for writ of habeas corpus, on August 7, 1894, involved some of the same facts. Although commenced at different times, they were argued together, and may as well be treated in one opinion. I will follow the method of the prevailing opinion in that respect. I will examine the question of the certiorari first. It appears that the district judge temporarily removed or suspended Mrs. Ming as executrix, and appointed Joseph N. Kenck, public administrator, as special administrator, or, in effect, directed the public administrator to take charge of the estate. (Probate Practice Act, §§ 95, 113.) A writ of certiorari was issued by this court to review that order. I think that the question upon this certiorari is whether the district judge had jurisdiction to make the order directing Kenck to take charge. This court said in the certiorari case of State ex rel. Murphy v. The Court, 11 Mont. 405: “ We have only to inquire whether the application is properly before us, and, if so, whether the district judge exceeded his jurisdiction.” I think that he had jurisdiction to make the order which he did in this case. Section 113 of the Probate
The case before us is on certiorari, and not appeal, as was the California case. I cannot find it in my mind to doubt that the district judge had jurisdiction to suspend Mrs. Ming. Having suspended the executrix, he appointed Joseph N. Kenck, public administrator, as special administrator, and
The certiorari being disposed of, as it seems to me it ought,
If it be suggested that no issue was raised here because the heirs had approved the executrix’s account I think it may be replied that there is the same issue here as could ever occur when a proceeding arises under sections 113, 114, and 115. Here the judge, of his own motion, without complaint of any one, “from his own knowledge or credible information” (§ 113) suspends an executrix, and goes into a hearing as to whether such executrix should be permanently removed. As to whether *the court had power to order a reference here, we find section 323 of the Probate Practice Act provides: “Except as otherwise provided in this title, the provisions of the Civil Practice Act of this state are applicable to and constitute the rules of practice in the proceedings mentioned in this title.” Section 710 of the Code of Civil Procedure provides: “The provisions of this code, so far as applicable, shall govern the proceedings and practice in the probate courts of the territory in civil actions.” Section 283 of the Code of Civil Procedure provides: “A reference may be ordered, upon the agreement of the parties, filed with the clerk, or entered on the minutes. . . . .” Then follow subdivisions. Section 284 of the Code of Civil Procedure provides: “When the parties do not consent the court may, upon the application of either, or of its own motion, direct a reference in the following cases: 1. 2. .... 3.4. When it is necessary for the information of the court in a special proceeding.” The court, in ordering a reference, recites as follows: “And whereas, on or about the twentieth day of January, 1894, she filed a very voluminous report, containing many accounts, which said re- » port was so extensive, covering a long period of time as in the judgment of this court to demand a reference; and whereas, in