22 Haw. 436 | Haw. | 1915
OPINION OP THE COURT BY
June 10, 1912, the appellant was appointed administrator of the estate of David Henry Davis by order made by the second judge of the first circuit, sitting in probate, and qualified as such. October 10, 1913, appellant filed a petition praying for permission to make a partial distribution of the estate. In the petition appellant stated that he had on hand about $4200, and that the sum of $1200 would be sufficient to pay all claims against the estate not then paid, and costs of administration, and: “That the heirs at law of the said David Henry Davis are the minor child of the said David Henry Davi's named James Kirkland Davis, and Jessie K. Davis his widow, and that Jessie K. Davis, widow of the said David Henry Davis, is the duly and legally appointed guardian of the estate of the said James Kirkland Davis.” The petition closed with the following prayer: “And the petitioner now prays that he may be permitted at this time to make a partial distribution of the said estate of the said David Henry Davis, and to pay to the said Jessie K. Davis widow and heir the sum of $1000 and to the said Jessie K. Davis as guardian of the said James Kirkland Davis the sum of Two Thousand Dollars, ($2,000.00).” On the same day, October 10, 1913, the said’circuit judge ordered as follows: “It is hereby ordered, adjudged, and decreed, that the said Ferdinand Hons be, and he is hereby permitted and allowed to make a partial distribution of the property of the said estate by paying to Jessie K. Davis as guardian of the estate of the said James Kirkland Davis, the sum of Two Thousand Dollars ($2,000.00), and to Jessie K. Davis as widow and heir the sum of One Thousand Dollars-($1,000.00).” June 5, 1914, appellant filed his partial account charging himself with receipts, and with disbursements including the sums of $1000
The only question before us is as to the correctness of the order surcharging the administrator with the one thousand dol
*440 “The practice in this Territory in probate matters is to require periodical accounts from an executor or an administrator * * *, and final accounts when the estate is ready to be wound up and the property distributed to those entitled. There is a clear distinction between the annual or periodical and the final accounts. The approval of the one is ex parte and without notice while in the case of the other it can only be made after notice to all concerned. The one is made annually or oftener at the discretion of the judge, the other only when the estate is fully administered. The one is for the information of the judge and the convenience of the administrator or executor in the management of the estate, the other is a final adjudication of the rights and obligations of all concerned. The one is only prima facie correct and is subject to correction for errors or mistakes in it thereafter discovered without an appeal or any direct proceeding to review it or set it aside, (see Estate of Banning, 9 Haw. 453, 457), the other is conclusive and final unless set aside on an appeal or a direct proceeding therefor or impeached for fraud. The approval of an annual account, being made without notice to any of the parties interested, is not conclusive as against one who does not appear, and in that sense-it is not a final order, but, if a party interested does appear and objects and has a hearing on his objections and then appeals, the order is final as to such party, at least in the sense of its. being appealable.” See also 18 Cyc. 1194; Holelua v. Kapu, 4 Haw. 539; Mikalemi v. Luau, 6 Haw. 47.
In the case at bar Alma Eleanor Davis, admitted to be one-of two surviving children of the decedent, did not appear, was. not given notice, the order to pay the guardian of James Kirkland Davis was made ex parte, and on the same day the petition therefor was filed, hence she did not have the opportunity to. present her claim as heir, and was not bound by the order permitting the payment. If an executor or administrator desires, to be relieved of the responsibility of holding funds at any time-prior to final accounting, on an ex parte proceeding, he must, be certain to correctly inform the court as to'the persons entitled, to participate in the fund. Here, the administrator represented that the deceased left a widow and one child. He failed to.
Affirmed.