| Mont. | Mar 19, 1894
Lead Opinion
Section 154 of the Probate Practice Act provides: “Every claim allowed by the executor or administrator, and approved by the probate judge, or a copy thereof, as hereinafter provided, must, within thirty days thereafter, be filed in the probate court, and be ranked among the acknowledged debts of the estate, and be paid in due course of administration.”
Mendenhall’s claim was allowed by the administrator and approved by the court. Appellants contend that these facts constitute a judgment, which is final, and which must be attacked by a motion for a new trial or an appeal, and which cannot be disturbed on a contest of' the account of the administrator. But such is not the law. It is a judgment of a quali
“ When any account is rendered for settlement, the court or judge must appoint a day for settlement thereof. The clerk must thereupon give notice thereof by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of tire account, which must be on. some day of a term of the court. The court or probate judge may order such further notice to be given as may be proper.” Section 267 provides for a contest, as follows: “On the day appointed, or any subsequent day to which the hearing may be postponed by the court, any person interested in the estate may appear and file his exceptions in writing to the account, and contest the same.”
When this section of the statute provides that “any person interested in the estate” may contest the account, it seems to be a plain declaration that any person interested may make the contest. It would seem not open to question that a creditor was interested in the estate when the account showed the allowance of an alleged debt, which such creditor claimed to be wrongfully allowed, and the allowance of which cut down the percentage which such creditor was to receive from the estate. Such is the position of the creditors and protestants, Nixon and Crave, as to the allowance of the Mendenhall claim. Such was the course of proceeding in the lower court. Nixon and Crave contested the account, as they might, under the provisions of sections 265 and 267, etc. The allowance and approval of the claim does not seem to be in the nature of a final judgment, when the statute provides that it shall not be final, but shall be open to a contest (Probate Practice Act, § 267) of the administrator’s account. Such seems to be a very plain view
Returning to the portion of the Probate Practice Act treating of the claims against the estate, we have to observe as follows: Section 154 speaks about the allowance of a claim by the administrator, and the approval by the probate judge. These acts may be dene without any hearing at all. It is true1 that section 156 provides: “When a claim is presented to the probate judge for his allowance, he may, in his discretion, examine the claimants, and others, on oath, and hear any other legal evidence touching the validity of the claim.” The judge, it is observed, may, in his discretion, examine the claimant and hear evidence; but he is not required so to do, and there is nothing to prevent him, if he happens to observe no objection to the claim, from allowing it without any hearing at all. Now, if the probate judge pursues this course, which he may under the law, and which we doubt not is the most frequent occurrence in that court, we have this situation: A claim against the estate has been allowed. Another creditor of the estate is injured thereby, for the reason that it reduces the percentage which he is to receive in case the estate does not pay its debts in full. That creditor is interested in the estate, and there is facing him, according to appellant’s view, a final judgment, which is to his injury, given without his knowledge, and without his having a day in court. There has been no hearing to which he has been invited; there has been no adjudication at which he has been notified to appear. Of course, it may be said that he can be present in the probate court, or before the probate judge, during all the period during which claims may be filed, and watch for the presentation of the claim to which he believes he has a valid objection. But we are of opinion that the law does not require any thing of this sort, especially where there is such a simple construction of the law as we have above described, which gives such a creditor an opportunity to come in upon notice upon the settlement of the administrator’s account.
Furthermore, here is another view: Suppose a claim be presented, allowed, and approved without a hearing, as it mav be,
“No. 20.
“In the District Court “oe “Gallatin County, Montana.
“In the Matter of the Estate of “ Frank Mouillerat, Deceased.
“Claim of John S. Mendenhall, $400.00.
“The within claim presented to J. P. Martin, admr. of said deceased, is allowed and approved for $400.00 this 27th day of June, 1890. J. P. Martin, admr. of said deceased.
“Allowed and approved for $400.00, this 23d day of March, 1891. Frank Henry, District Judge.
“Filed Sept. 4, 1890.
“John McLeod, Clerk,
“By B. H. Craweord, Deputy Clerk.”
Now, according to appellant’s view, the creditor interested in the estate, and wishing to make a contest, finds a record of the sort described, which is to be held to be a final judgment; that is to say, it is a bill or an account, with an ex parte affidavit, and the indorsements of administrator and judge, of “Allowed” and “Approved.” What could he present on a motion for a new trial or appeal? His showing of the wrongfulness of the account would not be in the record, nor would there be any evidence to review. We cannot hold such construction of the law when we have before us section 267, providing for a contest by a creditor, in which he may have a hearing.
Ryan v. Kinney, 2 Mont. 454" court="Mont." date_filed="1876-01-15" href="https://app.midpage.ai/document/ryan-v-kinney-6637297?utm_source=webapp" opinion_id="6637297">2 Mont. 454, has been mentioned in this case. In that case there was clearly an attempt to attack collaterally a final judgment of the probate court. We fully concur with the decision against that attempt. But here the allowance by the administrator, and the approval by the probate judge, of the Mendenhall claim, we have undertaken to
Appellants contend that the determination of the action in the United States court in 1885 was a judgment in favor of the United States, and against Mouillerat and his eodefendants, among whom was Mendenhall, and that Mendenhall was subrogated to the rights of the United States in that judgment. If that be true, then they contend that the statute of limitations, in reference to judgments, would apply to the Mendenhall claim, and that it would not be barred. If the United States did not obtain a judgment in the case described in the United States court, there was no judgment in which Mendenhall could be subrogated. It is clear that the United States did not obtain a judgment against Mouillerat, Olsen, Mendenhall, or Krug. The record from the United States court states plainly that that case was dismissed as compromised; and.it further appears from that record that the judgment was that the defendants go hence without delay, and recover a judgment against the plaintiff for their costs. So, there was no judgment in favor of the United States. Therefore, the most that appears is that Mendenhall paid money for the benefit of Mouillerat in 1885.
Appellants argue that the statute of limitations is a personal privilege, and that one cannot be compelled to take advantage of it unless he chooses. However true this may be as a general principle, it does not apply to the administrator in this case, for his action is controlled by section 156 of the Probate Practice Act, which provides that “no claim must be allowed by the executor or administrator, or by the probate judge, which is barred by the statute of limitations.”
The judgment of the district court sustaining the protest of Nixon and Crave, and disallowing the claim of Mendenhall, is therefore affirmed.
Affirmed.
Dissenting Opinion
dissenting.—Appellant Mendenhall presented his claim against the estate of Mouillerat, and the same was approved by the administrator and duly allowed by the court. (Probate Practice Act, §§ 153, 154.) About one year thereafter, when the administrator presented his final account for settlement, certain other creditors of said estate set up a contest of appellant’s claim, on the ground that it was barred by the statute of limitations. The court sustained said objection, whereby appellant was denied payment of his claim out of the funds of said estate. The claim was for money alleged to have been paid out by Mendenhall, as surety for decedent, in a proceeding against decedent in the United States district court in the year 1885. The record of said court shows the proceeding, and that settlement was made; and the evidence undoubtedly establishes payment by Mendenhall, on behalf of decedent, as claimed. But it is contended that the record of said proceeding in the United States court does not, in itself alone, establish payment by the surety; and therefore it is contended that appellant’s claim would fall within the class barred by the lapse of three years.
The question as to the effect of the allowance of a claim against an estate, as provided by the statute, appears to be one of considerable difficulty. Some authorities affirm that such allowance places the claim in the same status as a judgment (See 2 Black on Judgments, 641, and cases cited; also, California cases cited in appellant’s brief); and, if that conclusion is correct, such allowance cannot be disregarded or ignored, and another and independent contest set up against said claim. If the order of allowance is in the nature of a judgment, it would be necessary, in order to avoid such judgment, to follow it up by appeal, and obtain its reversal, or attack it by other direct action.
In support of the proposition that the allowance of the claim against the estate establishes it in the nature of a judgment, several provisions of the statute may be pointed to. Thus, it is provided that, after allowance in the manner prescribed, the claim shall be “filed in the probate court, and be ranked among the acknowledged debts of the estate, to be paid in due course of administration.” (Probate Practice Act, § 154.) Aud it is further provided that “a judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the probate judge, and the judgment must be that the executor or administrator pay in the due course of administration the amount ascertained to be due.” (Probate Practice Act, § 161.) This provision might be taken as bearing strongly in favor of the view contended for by appellant—that the proceeding resulting in the allowance of the claim was equivalent in its force to a judgment. Again, there are provisions of statute for the hearing of evidence by the probate judge, as to the merits of the claim, before allow
The tendency of all those provisions would seem to poiut to the conclusion that the final allowance of the claim of a creditor against an estate by the administrator and probate judge amounted to some thing more than a proceeding which could be ignored at pleasure, and leave the claim open to contest by any party interested and desiring to question it; and,, from a consideration of the statutes relating to this subject, and the cases in which this question has been discussed, I ant drawn to the conclusion that such allowance does establish the claim as against the collateral attack of all except the heirs and their representatives. This exception in favor of the heirs is made by statute, but does not appear to extend to others. The language is that “ all matters, including allowed claims not passed upou in the settlement of any former account, or on rendering an exhibit, or on making a decree of sale, may be contested by the heirs, for cause shown.” (Probate Practice Act, § 268.) This section undoubtedly holds the claim open to question by the heirs in a contest independently of the proceedings whereby it was theretofore passed upon and allowed by the court. And the language of that section seems to limit that privilege as one reserved to the heirs alone. If it was not the intention to so limit the privilege to set up another contest as to the claim after its allowance, why did the legislature so specifically declare that those matters were open to contest “by the heirs?” We have no doubt this is a wise and just provision in favor of the heir. Where an estate possesses sufficient assets to satisfy all demands, there is no motive to lead claimants to investigate, find evidence, and contest one another’s demands when presented for allowance, so as to reduce each claim to its proper proportions, or, if without merit, to cause its disallowance altogether’. (Beckett v. Selover,
The provisions of section 267 of the Probate Practice Act, that any person interested in the estate may contest the administrator’s account, should not be so applied as to annul the force of other special provisions of statute in reference to claims of third persons against an estate. The administrator’s account contains numerous items besides accounts of third persons against the estate which have been allowed aud approved by the probate court. As to such other terms, the administrator’s account should be, and is, open to contest by auy person interested. But, as to claims of third persons against tire .estate, the statute has made special provisions for their presentation, contest, and adjudication, even to appeal from court to court. According to the holding of the majority of this court, such adjudication establishes nothing. It may be brushed aside by any person interested in the estate; and, ignoring that adjudication, although it had gone to the court of last resort, he may
The accounts of third persons against the estate are not in fact the administrator’s account. Those accounts are independent of the administrator. He is not the one to prosecute them against the estate, nor to defend the matter of their allowance in case of contest of his account; yet the theory of the majority opinion in this case seems to be that, because the administrator’s account may be contested, the allowed accounts of third persons against the estate are thereby thrown open to contest as if they were the administrator’s accounts. The administrator would not be the supporter of such accounts; he should, and probably would, be the contestant at the proper time, and • until the account was established. Therefore, what difference would it make to him if third persons’ allowances were struck out of his account, unless he had paid the same on the strength of the allowance by the court? But observe the peculiar result of the holding in this case. If the administrator, having once contested a claim against his estate, even to the court of last resort, and has been defeated, and the claim established by such adjudication, the administrator can still say, according to the holding in this case—“That goes for nothing”—and, though the estate comprise millions, .lie may refuse payment, and, when the administrator presents his account, commence the same contest, and go through the courts with it again. Or defenses to claims against the estate may be set up by piecemeal—some when the claim is presented for allowance, and others when the administrator’s account is presented; some by one, and some by another/interested in the estate. Or, if defeated at the first trial, this need not be followed up by appeal or motion for new trial, as the statute provides, but the attack may be suspended until a more convenient time. Such are some of the peculi¿r results of the holding in this case. ■ ■
, The citations in the majority opinion neither support its reasoning n.or its conclusion. In the case of Estate of Loshe, 62 Cal. 413" court="Cal." date_filed="1882-12-20" href="https://app.midpage.ai/document/in-re-the-estate-of-loshe-5441067?utm_source=webapp" opinion_id="5441067">62 Cal. 413, the court* expressly decline to consider the point
There is no warrant for the presumption asserted in the majority opinion, that the administrator and probate court would neglect the solemn duty, imposed by law upon them, of carefully investigating claims against the estate before allowance thereof; and, had I found reason to subscribe to the conclusion reached in this case by the majority, I should withhold concurrence in the observations which carry that imputation. If such abuse and negligence in relation to a sacred trust, as the opinion “doubts not is the most frequent occurrence in that court,” could be satisfactorily established by proper evidence, it would be a matter for legislative consideration. It is well known that in a judicial inquiry as to what the law is, such considerations are not pertinent, except as mere suggestions looking towards the expediency of a legislative change.