Oles v. Macky's Estate

58 Colo. 295 | Colo. | 1914

Mr. Justice Gabbert

delivered the opinion of the court:

When it is made to appear, as it does, that petitioner prima facie is entitled to one-third of the estate, and that the distribution of the fund involved will deplete the funds and property of the estate in the hands of the executor or under his control to such' an extent that- should petitioner finally prevail in her action, there will not be sufficient property subject to the control of the executor to satisfy her judgment, the status of the estate should be preserved pending the final determination of her rights, or she should be protected in some appropriate way so that in the event she prevails her judgment can be satisfied. This is but simple justice, and we are of the opinion that when a claim against an estate is pending for adjudication it is 'error to order money paid to legatees, when by so doing sufficient will not be left in the hands of the executors to satisfy such claim, unless the claimant is secured against loss by such distribution. In Re Denike’s Estate, 6 N. Y. Sup. 450; Sherman v. Saylor, 36 Ill. App. 356; State v. Superior Court, 38 Wash. 677, 69 Pac. 375.

Counsel appearing here for certain of the legatees contend that requiring a bond was purely discretionary with the County Court, and that the exercise of this discretion should not be interfered with on review. To some extent this contention is based upon the fact, that petitioner’s claim was' not filed within the' period for presenting claims against an estate. Conceding that the matter presented to the court called for the'exercise of discretion, the ruling is reviewable, and should be reversed when it appears there has been plain, palpable and gross abuse of such discretion. That there was such an abuse of discretion in refusing to require the legatees to give bond to repay the amounts received, if petitioner prevailed in her action, is evident, because if she was successful, funds of tbe estate, which should be applied to the satisfaction of her judgment would have been dissipated, and to that extent she would be prevented or at least, greatly embarrassed in enforcing the collection of her judgment. Petitioner’s claim is not a demand against the estate within the statute requiring claims against an estate to be filed within a specified period.—Oles v. Wilson, supra. And hence, the cases cited which refused the exaction of a bond for the protection of a claimant, who had failed to file his claiih within the period fixed by statute, are not in point.

The next proposition urged on behalf of the legatees is, that the order of the County Court refusing the prayer of petitioner is not reviewable, for the reason that she is a stranger to the proceedings in that tribunal. She was not originally a party to these proceedings, but became such by presenting her petition, requiring the legatees to give bond, which would enable her to reach the fund about to be distributed to them, in case-she was successful in establishing her right to one-third of the estate.

Several other questions are urged on behalf of the legatees in support of their contention that the judgment of the County Court should be affirmed, none of which, in our opinion, have merit, or they are not presented by the record or have been determined adversely to their contention in Oles v. Wilson, supra. The vital question is, whether petitioner was entitled to the relief prayed, and as it is apparent from the record before us, she was, the judgment of the County Court is reversed and the cause remanded for further proceedings in harmony with the views expressed in this opinion.

Judgment reversed.

Mr. Chief Justice Musser and Mr. Justice White concur.