195 P. 317 | Utah | 1921
This proceeding involves a controversy between the estate of Henry Reiser, deceased (hereinafter called respondent or respondent estate), and the estate of Albert S. Reiser, deceased (hereinafter called appellant or appellant estate).
Respondent seeks to withhold from appellant a distributive share of respondent estate on the alleged ground that appellant is indebted to it for money wrongfully converted.
A brief chronological statement of the facts at this point will assist the reader in understanding the questions involved. Henry Reiser died in July, 1904. He left a will, two widows, and numerous children. His wife, Margaritta, his son Albert S., and Arnold G. Giauque were named in the will as executors. He left considerable property, both real and personal. His son Albert S. transacted practically all of the business of the estate. The other executors' gave it little or no attention. In July, 1911, Albert died. No accounting of the business of the estate had ever been rendered. Upon petition of the surviving executors in August, 1911, one Orson Rumel was appointed as a competent accountant to audit the books and accounts of the estate. The auditor made his report, which showed a deficit of $19,180.50 in the account of Albert, as executor, in his dealings with the estáte. This amount is charged in the auditor’s report as a claim against appellant. In the meantime Nellie H. Reiser, widow of Albert, was appointed .as administratrix of appellant estate. Shortly after the coming in of the report of the auditor and surviving executors of respondent estate, some of the parties interested in that estate petitioned the court to remove the surviving executors on account of their negligence and inattention to the business of the estate. A hearing was had
Before concluding this statement it may be said, once for all, that in all of the proceedings referred to where there was a hearing in court such notice as is ordinarily given in a probate proceeding was given to all the parties interested in respondent estate, including Nellie H. Reiser, administratrix of appellant.
This brings us to the proceeding now under review. Harry Haynes, administrator of respondent, having died, was succeeded by John Yetterli, who is now acting as administrator of respondent estate. Yetterli, as administrator, and the devisees and legatees of the estate, filed separate petitions for partial distribution of respondent estate and prayed that the administrator of appellant be required to account for the things done by Albert S. Reiser, as executor of respondent, and that the administrator of respondent be directed to retain the interest of appellant and apply the same on the amount owing by appellant to respondent. The petition of the legatees under the will is full and comprehensive. It recites practically all the matters referred to in the foregoing statement of facts and makes the claim against appellant the basis for an accounting and also for the “right of retainer” prayed for in the petition. Nellie H. Reiser, as administra-trix of appellant, demurred to the petition on the ground that the court was without jurisdiction, and also that the facts stated were insufficient to entitle petitioners to relief. The demurrer was overruled. She then filed an answer in which she denied that appellant is indebted to respondent, admitted that no accounting had been had, and alleged that none, had ever been requested. The answer further alleged that she has at all times been deprived of the custody, control, and care of the papers, vouchers, property, and assets of the es
The court, to whom the case was tried without a jury, found the issues in favor of the petitioners and directed the administrator to apply the distributive share of appellant to the payment of the indebtedness due respondent. Judgment was accordingly entered. The administratrix of appellant estate appeals from the judgment and for a reversal thereof relies upon several assignments of error which will now be considered.
Appellant contends that the judgment is erroneous because: (1) The claim was never admitted or adjudicated; (2) it was barred by the statute of limitations; (3) it was barred by laches; (4) it was not established by the evidence.
1. “The claim was never admitted or adjudicated.” Under this head the appellant discusses the doctrine of “retainer” as the same is understood in the administration of the estates of decedents, and furnishes us with the following terse definition of the term:
“Where an heir owes the estate a sum of money, he should not participate in the distribution of the assets of the estate until he has paid what he owes.”
Appellant accepts this as a wholesome doctrine, but insists that in the instant case the question is: Does Albert S. Reiser, or his estate, owe respondent the amount claimed, or any amount? It is contended by appellant that the alleged indebtedness must either be admitted or judicially determined before the interest of the heir can be retained and applied in payment of the debt. We are inclined to the view that ap
In a very recent case decided by this court, In re Tripp’s Estate, 51 Utah, 359, 362, 170 Pac. 975, at page 976, the court after quoting Comp. Laws Utah 1917, § 3918, said:
“We are not prepared to say, and do not decide that under our state Constitution and statutes, the district court, sitting as a court of probate, has not the power and jurisdiction to hear and determine all matters involving partnership relations between the surviving and deceased partner. However, we are convinced be- ■ yond any doubt that in the matter at bar the court had no jurisdiction, in view of the foregoing statute, to order or decree a final settlement of the partnership affairs as between the surviving partner and the deceased partner’s estate without any accounting with the administrators and without the necessary facts being presented to the court in a proper manner. As pointed out, no accounting or settlement of partnership affairs was had by the surviving partner with the administrators in compliance with the foregoing statute, nor were there any proper pleadings before the court whereby the equity powers of the district court, sitting as a court of probate, or otherwise, might be legally invoked, and proper findings on which any valid decree of a final settlement of partnership affairs could be predicated.”
There seems to be no reason, under our Constitution and laws, why a district court in a probate proceeding may not when necessary to a due administration of an estate exercise powers which ordinarily pertain to equity jurisdiction so that the business may proceed without interruption or unnecessary delay. But, as suggested in the excerpt quoted from the case referred to, in such case the pleadings should be such as to warrant the exercise of the power. In this case, as we understand the record, as far as the proceedings in
However, it is contended by respondent that in any event the claim in question was adjudicated in the case at bar and judgment rendered in favor of respondent.
Assuming for the present that the pleas of laches and the statute of limitations which is yet to be considered should not prevail, it becomes necessary to examine the pleadings in the instant case, and in the light of what has already been said determine whether or not the court had the power to enter the judgment.
The petition of the heirs and devisees of respondent estate for partial distribution alleges all the facts heretofore recited by us near the beginning of this opinion. It alleges the shortage in the account of Albert; that he advanced to himself during his lifetime the sum of ,$19,180.58; that his estate is insolvent and that no recovery can be had against it for said amount, or any amount, and that said amount is more than twice as much as he would be entitled to as a dis-tributee of the estate. The petitioners pray, among other things, that the court fix a time for hearing the petition; that the court ascertain the number of heirs interested in the estate ; that it ascertain the amount Albert S. Reiser advanced to himself from the assets of the estate of Henry Reiser; that it ascertain the sum of amount, if anything, now due the Henry Reiser estate from the estate of Albert S. Reiser and whether or not his estate is entitled to a distributive share in any amount in the estate of Henry Reiser; that the administrator of the estate of Henry Reiser be ordered to retain and apply any right, title, or interest the estate of Albert S. Reiser may have in the Henry Reiser estate on any indebtedness owing by the estate of Albert S. Reiser to the Henry Reiser estate. Petitioners pray for general relief.
The petition of the administrator John Yetterli is equally full and comprehensive, and in addition prays specifically that the administrator of the estate of Albert S. Reiser be ordered and required to make an accounting of the things
To both of these petitions Nellie H. Reiser, as administra-trix of tbe estate of Albert S. Reiser, filed demurrers and afterwards filed answers in which she denied tbe indebtedness and pleaded laches and tbe statutes of limitation.
There can be no doubt whatever as to the sufficiency of the pleadings to invoke the power of the court to adjudicate and determine the validity of the claim made
2. Following tbe order of appellant’s brief, we shall next consider appellant’s plea of tbe statutes of limitation. Appellant relies on every statute possibly applicable found in either the civil or probate code of procedure. Tbe discussion may be limited by conceding that tbe action is barred if there is any statute applicable to a ease of this kind. Appellant concedes that statutes of limitation do not apply in favor of an executor or administrator as long as be bolds bis position as sucb. It is contended, however, that this rule is changed whenever sucb relation is terminated by death or otherwise. Applying this doctrine to tbe instant case, it is conceded that if Albert S. Reiser, executor of bis father’s estate, bad lived and continued to bold that position, tbe statutes, of limitation could not have been, invoked. But tbe record discloses that Albert died in July, 1911; that bis trust relation was thereby terminated; that an administratrix was appointed for bis estate in tbe same year; that tbe statutory notice was given to creditors, and the appellant contends that tbe statutes of limitation were thereby set in motion against tbe right sought to be enforced in this case. In this connection appellant cites the opinion of the court in McGrath v. Carroll, 110 Cal. 79, 42 Pac. 466, which bolds that tbe period of limitations begins to run upon the first publication of notice to creditors. Appellant also quotes a lengthy excerpt from 18 Cyc. at page 1120, and from Salmon v. Wynn, 15 A.
Respondent insists that the statutes of limitation have no application to the present case; that respondent is not seeking an affirmative remedy by this proceeding; that it is only claiming the right to retain the share that appellant would be entitled to if it were not indebted to respondent estate. In other words, respondent invokes the “right of retainer” as known and applied in the settlement of estates of decedents.
In Holmes v. McPheeters, 149 Ind. 587, 49 N. E. 452, the court speaking of the right of retainer said:
“This right is not one of set-off, hut is founded on the principle that the administrator or executor has an equitable lien on the share of the distributee or legatee, until the latter has discharged the obligation which he owes to the estate. The heir or legatee, as the aiithorities affirm, is not, in accordance with justice or good conscience, entitled to be awarded and receive his share as long as he is a debtor to the estate, and thereby has in his own hands a part of the fund upon which the payment of his own share and the shares of others depend.”
See, also, New v. New, 127 Ind. 576, 27 N. E. 154.
In 1 A. L. R. at page 1007, in the note, it is said:
“The cases are in conflict upon the question whether there is a right of retainer in respect of debts which have become barred by the statute of limitations. The weight of authority, however, is to the effect that the amount of the statute-barred debt may be applied by the executor, or administrator, in satisfaction of the debtor’s legacy, or distributive share. This is upon the theory that the statute of limitations bars only the right of action, and not the debt itself, and therefore that, where property of the debtor comes, into the hands of the creditor, the statute does not preclude his appropriating such property to the payment of the debt.”
The annotator cites cases from Alabama, Georgia, Illinois, Iowa, Kansas, Missouri, New York, South Carolina, Vermont, and England; contrary, cases from Maine, Massachusetts, Nebraska, Ohio, Pennsylvania, and Tennessee.
“Except in Louisiana, where the matter is regulated by statute (Flower v. Myricfo, [1897] 49 La. Ann. 321, 21 So. 542), the right of retainer is not confined to debts owing to the decedent in his lifetime; but, in accordance with the equitable principle upon which such right is based, extends to the case of an indebtedness to the estate incurred after the decedent’s death.”
In support of tbis proposition cases are cited from 13 states of tbe Union, and also from England and Canada. We are referred to no authorities to tbe contrary.
After a careful review of many of tbe authorities cited, we find no difficulty in arriving at tbe conclusion that the statutes of limitation relied on by appellant should not
“The statute of limitations bars only the right of action, and not the debt itself, and therefore that, where property of the debtor comes into the hands of the creditor, the statute does not preclude his appropriating such property to the payment of the debt.”
Assuming it to be an established fact that Albert S. Reiser in bis lifetime became indebted to tbe estate of Henry Reiser, and that be died leaving tbe indebtedness a subsisting obligation, it does seem inequitable and unjust from every point of view to bold that his estate should be permitted to enjoy an equal share in tbe distribution of tbe Henry Reiser estate while withholding therefrom a portion of the assets from which the distribution should be made. It therefore ought not to be a matter of surprise to find that the overwhelming weight of authority, both in this country and in England, holds that statutes of limitation may not be invoked in a case where the right of retainer is involved.
3. But appellant insists that if the action was not barred by the statutes of limitation, in any event it was barred by laches. It must be conceded that there are many features of the case which ordinarily would justify a court of equity in applying this doctrine. First, we have the death of Albert
Under all the circumstances of the case we are of the opinion that the administratrix of the appellant estate is not in a position to charge laches against either respondent or the other petitioners. Besides this, it does not appear from the record when Rumel and the surviving executors entered upon their investigation as to the condition of
There is no merit in the plea of laches.
4. Finally, appellant contends that the claim against the appellant estate was not established by the evidence. To this contention but little need be added to what has already been said. At the trial Orson Rumel was called as a witness and testified that he had had in his possession at the time of making his report vouchers for the items upon which the report was based; that the books, papers, and accounts were turned over by him to Mr. Haynes’ attorney, when Haynes was appointed administrator, and witness never saw them after-
We do not see how the trial court could have arrived at any other conclusion than the one reached. When it was shown that the money and property were received by Albert and no evidence introduced as to how or for what purpose it was disbursed, if it was disbursed, the only thing the court could do was to hold his estate responsible. This the court did, and in so doing it committed no error.