158 P. 705 | Utah | 1915
Lead Opinion
On May 13, 1901, one Alonzo H. Raleigh died in Salt Lake county, Utah, leaving a last will and testament and a large number of heirs. In said will the decedent nominated as executors one William Asper and one Alfred Solomon. When the will was presented for probate to the probate court of Salt Lake county, some of the heirs of the deceased, pursuant to the statute, filed objections' to the appointment of said Asper and said Solomon as executors. On November 9, 1901, the will was duly admitted to prbbate. The objections filed as aforesaid, after a hearing by the probate court, were also overruled, and said Asper and said Solomon were duly ap
. ‘ ‘ Six months after his appointment, also within thirty days after .the expiration of the time within which creditors must present their claims, and at any other time when required by the court, either upon its own motion or upon the application of any person interested in the estate, every executor or administrator must render for the information of the court an account of his administration, under oath, showing the sums of money received by him and from what sources, the amounts expended by him, a statement of all claims presented against the estate and the names of the claimants, and all other matters necessary to show the condition of its affairs. ’ ’
Pursuant to the foregoing section, on December 6, 1902, the executors filed what is called their first account. Section 3942 provides:
“When any account is rendered for settlement, the court or clerk must appoint a day for the settlement thereof, of which the clerk must give notice.”
The record shows that the account presented as aforesaid was referred to a referee for audit, and that on January 26, 1903, the account was duly allowed and settled by the probate court of Salt Lake County. The order of the court settling the account seems to be full and regular. Some time after the approval of said account proceedings were instituted by some of the heirs of the deceased to remove the executors, but upon a hearing the objections were overruled, and all of the acts of the executors which were complained of were duly sustained and approved by the probate court. On July 5, 1905, the executors' filed their second account. Objections were filed to that account by some of those interested in the estate. The objectors were represented by counsel. In September, 1905, an amended account was- filed, and objections were also filed to the amended account by the same objectors who had objected to the account filed on July 5th as aforesaid. .All the foregoing objections were duly heard by the probate court of Salt Lake County, and on October
. “That your petitioners are advised and believe and therefore aver that there are various and sundry errors, omissions, and misstatements in the reports and accounts of said executors, and that there are various and sundry items of personal property, including cash and stocks which are the property of said estate and the parties entitled under the last will and testament of the deceased, including your petitioners, which said properties have never been accounted for, nor reported to this court. That the several items of properties so referred to are of the approximate value of $1,800.
“That your petitioners are advised and believe, and therefore aver, that the management of said estate, by said executors has been at all times herein mentioned improvident and wasteful, and that they have mismanaged and dissipated a large portion of the assets of said estate, and have failed to render a true and accurate account and report of their administration upon said estate.”
It is also made to appear from said supplemental objections that after the filing of the first objections to the ijaid final account the probate court appointed one Orson 3?. Rumél as referee to examine said final account; that said Rumel had done so, and had filed his report, from which it was made to appear that he had gone back over the entire accounts and
“It appearing to the satisfaction of the court from the files,- records, and all of the evidence therein that the former Reports and accounts of said executors, hereinbefore described, were not true and correct, and contained many errors, and that the last and final report as rendered by said executors is not a true and correct account, and statement of the accounts, and assets of the said estate, and that all of the assets have not been accounted for by said executors, and that said reports and accounts were made and rendered either in gross negligence or fraud; the same being in fraud of the rights of the beneficiaries and parties entitled to said estate.
Upon the allegations made in the supplemental objections filed, which we have set forth herein, and upon the foregoing findings, the court vacated and set aside the former orders
The proceedings that arose pending the administration of the estate since 1901 are very voluminous, so much so that we cannot even set them forth in substance. For reasons hereinafter appearing, however, it will not be necessary to refer to those matters specifically.
Counsel for the surviving executor have assigned a large number of errors, and such as we deem material we shall now proceed to consider.
One of the principal assignments relates to the overruling of the demurrer which was interposed to the supplemental objections and to the overruling of the executors’ objections to the court’s re-examination of the two preceding accounts which.had been settled and approved after contest, as before /stated. It would seem that under ordinary conditions one would not have great difficulty in determining that when ¡a court of competent jurisdiction, in the regular way, especially after contest, has settled and approved an administrator’s of executor’s account, such settlement would be conclusive until the same was, by a court of equity, set aside for fraud or mistake in a proper proceeding instituted for that purpose. In this jurisdiction, however, there is a, statute, the provisions of which, apparently at least, are in direct conflict upon the subject of the settlement of executors’ and administrators’ accounts. Compiled Laws 1907, See. 3946, reads as follows:
“The settlement of the account and the allowance thereof by-the court, or upon appeal, is conclusive against all persons in any way interested in the estate, saving, however, to all persons laboring under any legal disability, their right to move for cause to reopen and examine the account, or to proceed by action against the executor or administrator, either*134 individually or upon his bond, at any timé before final distribution; and in any action brought by any such person, the allowance and settlement of the' account is prima facie evidence of its correctness.’^
The foregoing section is a transcript of section 1637 of the California Code of Civil Procedure, and was incorporated into the Revised Statutes of Utah for 1898 by the code commissioners as section 3946 of that revision.
In addition to section 3946, supra, we also have section 4048, which provides:
“Mistakes in settlements may be corrected at any time before final settlement and discharge, and, after that time, by equitable proceedings, on such showing as will justify the interference of the court.”
The latter section .is taken from Iowa. See 1 McClain’s Ann. Code of Iowa 1888, Sec. 3679. Section 4048 was adopted from Iowa and placed into the Revised Statutes of Utah of 1898 by the code commissioners. When that revision was adopted, therefore, we adopted the two conflicting provisions, one from California and the other from Iowa, and they have remained in force in this jurisdiction ever since. The probate court, in reopening and re-examining the two preceding accounts of the executors which had been duly allowed and settled after contest, one in January, 1903, and the other in October, 1905, literally followed and applied the provisions of section 4048, supra, taken from Iowa,, and disregarded the provisions of section 3946, supra, taken from California. We think it is quite apparent that it is impossible for any court to follow literally the provisions of both of those sections. While that is true, we must nevertheless reconcile the conflicting provisions, if that can be done, and give them both effect to the’ extent that it is possible to do so without doing violence to the well-known rules or canons of construction. The statute, which is taken from Iowa, has been in force in that state, in substantially the same form it is still in force, for many years, as will appear from an examination of the several codes and revisions of that state. It is first found in the Code of Iowa of 1851. It was then carried into the Revision of 1860. From there into the Code of 1873, and then
“3679. Mistakes in settlement may be corrected at any time before final settlement and discharge of the executor, and even after that time on showing such grounds for relief in equity as will justify the interference of the court.
“3680. Any person interested in the estate may attend upon the settlement of accounts by the executor and contest the same. Accounts settled in the absence of any person adversely interested and without notice to him, may be opened within three months on his application.” McClain’s Code.
In Iowa there is no provision for notice as in our statute. Section 3942, supra. By referring to the two Iowa sections it will be seen that they are not strictly harmonious.. In section 3679 the right to correct mistakes in settlements seems to be given without qualification if made ‘ ‘ at any time before final settlement and discharge of the executor,” while in section 3680 only accounts that are settled “in the absence of any person adversely interested and without notice to him, may be opened within three months”- from the time of said settlement. The Supreme Court of Iowa has, however, had frequent occasion to construe and apply the foregoing sections. The sections were under consideration in the ease of Cowins v. Tool, 36 Iowa, page 85, where it is stated:
“The court of probate, having passed upon and approved these accounts, its action will be conclusive until impeached for fraud or mistake. It has the same effect as other adjudications of a court upon a matter within its proper jurisdiction.” .
The court then refers to section 3679, supra, where it is provided that “mistakes in settlements may be corrected,” etc., and concludes:
“These views dispose of the attacks directed against the several settlements made by the court of probate with the executor. They must stand until impeached by proper evidence of fraud or mistake.”
In Dorris v. Miller, supra, it is expressly held that the Iowa statute applies only where settlements have been made without notice, and in the absence of the party interested. Where, as in the cáse at bar, settlements have been made after notice and contest, it is held they can be assailed only for the same reasons and in the same manner as other judgments. In Re Estate of Sawyer, 124 Iowa 485, 100 N. W. 484, it is held that mistakes in ex parte settlements between the court and the executor, as the court puts it, may be corrected as in the statute provided, since such settlements are not regarded with the same solemnity as when they are made upon notice or contest. In Tucker v. Stewart, supra, the Supreme Court of Iowa again lays down the same rule, and holds that an attack upon a settlement made after notice and contest must be made by a bill in equity in the regular way, and that it should be brought in the district court and not in the probate court. In Iowa the district courts are invested with jurisdiction in probate matters the same as the district courts are in this state. In the Iowa cases it is also pointed out that allegations of fraud or mistake should be specific; that is, they should refer to the particular items sought to be corrected so that the executor may explain or meet them.
The rule upon the subject of pleading, as it is stated in 18 Cyc. 1203, seems to be the one that is generally adopted by the courts, including the courts of Iowa. In such cases the rule is there stated in the following words:
“The complainant’s claim or title to relief should be stated with accuracy and clearness, and with such certainty that defendant may be distinctly informed of the nature of the case which he is called on to meet, and matters essential to the complainant’s right to relief must appear, not by inference, but by direct and unambiguous averments. A bill or petition which contains only general charges of fraud, accident, or mistake, without specifying in' what the fraud, accident, or mistake consists, is insufficient, and in a proceeding to surcharge and falsify, the' bill or petition must specifically point out the errors, omissions, or false' charges complained of.”
Referring now to the California decisions which are predi-, eated upon section 3946, supra, it will be seen that it has also been held by the Supreme Court of California that all settlements, whether intermediary or final, are conclusive as to all items included therein, where the statutory requirement of notice has been complied with, and where an heir or party is not laboring under some legal disability. In re Estate of Grant, 131 Cal. 426, 63 Pac. 731, In re Estate of Marshall, 118 Cal. 379, 50 Pac. 540, and In re Guardianship of Wells, 140 Cal. 349, 73 Pac. 1065, the question is discussed and decided. A large number of other California cases are referred to in the foregoing eases, to which reference, however, is unnecessary.
In view that the ease must be remanded to the probate court of Salt Lake County, it becomes necessary to consider at least two other assignments.
“The general rule is not to charge executors or administrators with interest when their accounts are settled in the ordinary course, for the reason that they are not at liberty to risk the money belong*139 ing to the estate, and are to he always ready to pay it over according to the direction of the will or the orders of the court. If, however, they have made actual use of the funds, or delay paying over balances in their hands after demand, or, without any just reason or excuse, retain the money in their hands unemployed, when it ought to be invested or paid over, they are chargeable with interest.”
We desire to state in conclusion, that in the present state of the record it is not possible for us to make an order or direction respecting the items that should be allowed or disallowed. While it seems reasonably clear from the record that the affairs of the estate have been very carelessly, and perhaps negligently, handled, and it may be that the executors should be charged with various items that they have omitted from their final account, yet all that we can direct at this time is that all items which were included in the two preceding accounts which were settled and approved by the probate court may not be re-examined or modified in this proceeding.
The judgment or order of the court appealed from is therefore reversed, and the case is remanded to the probate court of Salt Lake County, with directions to set aside its findings or judgment and to proceed to hear and determine the objections to the final account in so far as the objections are proper within the rule hereinbefore stated, and after said hearing to make findings and conclusions and to enter such order as may be proper and in accordance with the views herein expressed. Costs of this appeal to be paid out of the estate.
Rehearing
On Petition for Rehearing.
“It is apparent, therefore, that an executor’s or administrator’s account which has been allowed can be assailed only in equity and upon the same ground as other judgments. Moreover, such attacks cannot be made, as they were attempted to he made in this proceeding, by mere reference to some items in the objections filed to the allowance of the final account, but the attack must be made as in other cases where a judgment is assailed for fraud,” etc.
If we should attempt to do what counsel, in their petition for a rehearing ask us to do, we would be compelled to usurp power by assuming the powers of a court of equity possessing original jurisdiction. For that reason we refrained from going into the evidence in the original opinion, and it is for that reason that we cannot entertain the petition for a rehearing. While this court has the' power to make its own findings in equity cases, it, nevertheless, does so merely as an appellate or reviewing tribunal. We possess no original jurisdiction in such cases, and in ease an action must be commenced in equity, as we have indicated should have been in this case, we cannot convert a mere motion into such an action. The petition for a rehearing must therefore be, and it accordingly is, denied.
