178 P. 753 | Utah | 1919
Plaintiffs filed their petition in this court praying for a writ of certiorari. Thereafter a return and answer were duly filed. Upon the hearing in this court the petition was denied. Plaintiffs, in due time, filed a petition for rehearing, which was granted.
In the opinion of the court, written by Mr. Chief Justice Corf man, it was stated that "the record of proceedings before the district court in the matter of the estate is far from satisfactory. ’ ’ Since the complete record has been brought to this court, there is less difficulty in drawing proper conclusions.
As they now appear the undisputed facts are: John F. Smith died intestate at Ogden, Weber County, Utah, October 12, 1914, leaving an estate in that county consisting of real and personal property. On October 13, 1914, a special administrator was appointed to preserve the estate pending the appointment of a permanent administrator. On December 19, 1914, R. A. Moyes, one of the plaintiffs herein, was duly appointed administrator, and he has acted ever since in that capacity. An inventory was duly filed, personal property and some of the real estate sold, notice to creditors published, all taxes and funeral expenses paid, and decree showing notice to creditors signed and filed. Part of the property of the estate was by decree of court distributed to Mary J. Smith as the widow’s portion of the estate, which was accepted by her in full and complete settlement of all claims against the estate. On September 23, 1916, the administrator rendered and filed what purported to be a final account and at the same time filed a petition for distribution of the estate, said petition containing all the statutory requirements. Upon due and legal notice said account was approved and .decree settling same was filed
Plaintiffs claim the decree of distribution of October 13, 1916, to be final. .Defendant replies by saying that there was no final decree for two reasons: (1) That there had been no final settlement of accounts of the administrator, although “the record shows a decree settling his final account the same day”; and (2) that the supplementary account settled April 9, 1917, did not become a final account, and that no final account has ever been allowed nor final decree of distribution made..
The controlling questions in this case are whether the court had the power to make the decree of October 13, 1916, and whether it was a final decree of distribution.
We conclude, therefore, that the decree of distribution rendered and entered in October, 1916, was a final decree of distribution, and that its finality remained unaffected by the supplementary decree of April, 3917. That decree has not been “reversed, modified, or set aside on appeal” and the time in which an appeal can be taken in this state is by statute limited to six months from the entry of the judgment or order appealed from. No attack was made upon it until the administrator in June, 1917, petitioned the court to vacate the final as well as the supplementary decree, and that petition was granted February 5, 1918.
The petition of the administrator asking that the decree be vacated was not filed until more than six months after the time of making and entering the final decree of distribution, so that it matters not whether notice was or was not given of the administrator’s petition of June, 1917. Without any apparent reason, except that he desired to do so, the administrator asked for the vacation of a final decree, and that “the balance of the property of the estate” be sold, and then proceeded to describe the identical property mentioned and described in the decree of distribution. All this property having been distributed to the heirs by the decree of October 13, 1916, there was nothing for the administrator to sell and nothing for the court to order sold. Just what was the purpose of the' administrator in pre
In Re Raleigh’s Estate, 48 Utah, 128, 158 Pac. 705, Mr. Justice Frick said:
“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.’’ Comp. Laws 1917, sections 7559, 7752, 7765; Barrette v. Whitney, 36 Utah, 574, 106 Pac. 522, 37 L. R. A. (N. S.) 368; Snyder v. Murdock, 26 Utah, 233, 73 Pac. 22; Ehrngren v. Gronlund, 19 Utah, 411, 57 Pac. 268; Wheeler v. Bolton, 54 Cal. 302; Buckley v. Superior Court, 102 Cal. 6, 36 Pac. 360, 41 Am. St. Rep. 135; Morffey v. San Francisco, etc., 107 Cal. 587, 40 Pac. 810; Moore v. Lauff, 30 Cal. App. 452, 158 Pac. 557; In re Garroud’s Estate, 36 Cal. 277; In re Schmierer’s Estate, 168 Cal. 747, 145 Pac. 99; 2 Church, New Probate Law, pp. 1474-1476.
The district court has therefore lost jurisdiction over the distributed property. Its jurisdiction is exhausted, and the property has passed from the possession and control of the administrator and is no longer a part of the estate.
The administrator may be inconsistent in the position now taken by him, but that cannot affect the finality of the first decree ¿nd restore to the court its lost jurisdiction.
The time in which an appeal could have been taken or the decree of distribution attacked in these proceedings having passed, it follows that the final decree, of distribution should not have been vacated, and that the same cannot be assailed except upon equitable grounds, and then only by proper proceedings in equity.
The former decision of this court is therefore reversed and vacated, and the present one is substituted therefor and will be published as the only opinion in the case.
It is therefore ordered that a peremptory writ of prohibition issue, and that the order of the district court vacating the decree of distribution be annulled and set aside. Each party to pay his own costs in this court.