182 N.W. 697 | N.D. | 1921
Lead Opinion
This controversy involves the final settlement and distribution of the estate of Carl W. Priewe, deceased. On a former appeal this court construed .the will, and determined that the widow possessed a life estate with power of alienation and encumbrance, if necessary, for her use and support. 43 N. D. 509, 175 N. W. 734. And we found as a fact that during the life of the widow an outstanding mortgage against the premises in the sum of $700 had been paid off by moneys belonging to the widow; that the administrator had been compelled to and had borrowed some $610. And we ruled that these items constituted a charge upon the property as against the residuary legatee, and in effect constituted a fund in the hands of the administrator properly applicable to the payment of claims incurred for the support, care, and burial of the widow. 175 N. W. 735.
The facts relating to the litigation are fully stated in the opinion on the former .appeal. See 175 N. W. 732. As stated therein Carl W. Priewe died testate on or about June 3, 1895. By his last will and testament his widow was given a life estate with power of alienation or encumbrance, if necessary, in all real and personal property. 175 N. W. 734. The widow died December 19, 1916. From 1901 to 1916 the land had been looked after by the administrator, who received the rents and profits therefrom and made an accounting therefor to the county court. 175 N. W. 733. On April 25, 1917, the administrator
Aside from certain procedural qxxestion's, which we find it unnecessary to consider, the errors assigned on this appeal relate solely to the $610 item referred to in the opinion on the former appeal.
Much of the differences of opinion which have given rise to this litigation have been caused by the failure of the parties to recognize the fact that in this case the will vested in the widow a life estate of the character determined in our opinioxi on the former appeal. During the lifetime of the widow she was not only entitled to possess, but to sell and encxxmbex-, the property, if lxecessary, to provide for her support and maintenance. Yet, during this time the property was administered by the administrator with the will annexed. In other words the administrator, as administrator, purported to and ■ did handle moneys and property which in fact belonged to the widow absolutely.
In the oi’iginal opinion on the former appeal we said: ' “We agree with the determination of the trial coxxrt that the accountings made by the administrator to which no objection was made or appeal therefrom were taken are final, and not subject to review. . . . Accordingly the appellant (the respondent on this appeal) herein is not in a position to dispxite the disbursements made by the administrator as showix
The language quoted from the supplemental opinion forms the basis of the controversy between the parties on this appeal. It seems
As we have already indicated, much of the misunderstanding and disagreement in this case is doubtless due to the fact that the property of the widow was treated as the property of the estate, and claims chargeable against her and claims chargeable against the estate and the administrator were commingled, and all treated as claims against- the estate and the administrator. In other words, there was a complete failure to recognize the fact that the widow was the owner of a life
There ought, however, to be no difficulty in fixing the liability of the administrator in this proceeding. He is entitled to such compensation for his services as the law prescribes, and he is entitled to be reinbursed for whatever moneys he has actually advanced in carrying out the directions of the will and the different orders of the court, whose validity is no longer subject to review. In the report and account dated April 25, 1917, it appeared, and in the determinataion thereof which was brought before this court for review on the former appeal it was determined, that the administrator' had borrowed and advanced to the widow $610.29 more than he had received from all sources. This finding we approved, and it necessarily followed, under the views we then expressed, that the administrator was entitled to be reimbursed for such expenditures.
In the final report and account rendered in February, 1920, the administrator showed that he had collected rents for the land and for the three years siibsequent to the death of the widow. While these moneys in a sense belonged to the residuary legatee, they were nevertheless, under the views expresesd in our former opinion, properly chargeable, in the hands of the administrator, with what he had expended or advanced for the support and maintenance of the widow, and would also be chargeable with whatever moneys legally belonging to her had been expended in paying off encumbrances on the land. It appears that in such last final report and account the administrator charged, as against the moneys which he had so received subsequent to the death of the widow, the said $610.29 item and interest thereon, and this was allowed by the county court in the order allowing the final report. In the order amendatory thereof, however, such item was disallowed. As already indicated, we believe that this item was properly allowed as a credit in the administrator’s account, and that it was error to change the order as as to disallow such item.
. The county court disallowed certain claims for the care of the widow, and for services rendered and expenses incurred in connection
Reversed and remanded, with directions that the cause be remanded to the county court for further proceedings in conformity with this opinion.
Concurrence Opinion
(specially concurring). I agree with the result that has been arrived at in this case. I do hot think the filing of the nine dif
Tbe question of estoppel is not presented in tbe case. It is neither pleaded nor relied on. We think, however, in this case tbe proper conclusion and tbe proper result has been reached.