87 P. 1002 | Idaho | 1906
Lead Opinion
This is an appeal from the judgment of a district court dismissing the appeal from an older made by the probate court of Idaho county directing the confirmation of the sale of real estate and the conveyance thereof. The facts of the case are substantially as follows: The administrator of the estate of Louis H. Denison, deceased, filed his petition for the sale of certain real estate of his intestate’s estate in the probate court of said county, for the purpose of paying the debts of said deceased, and alleged in said petition that he was also the guardian of the minor heirs of said
The only question submitted for decision on this motion is whether in a proceeding for the sale of real estate belonging to a decedent’s estate the guardian ad litem of the minor heirs is entitled to a service of the notice of appeal from an order confirming the sale of such real estate, as an adverse party.
The law of succession to the estates of certain intestates is fixed by the provisions of section 5701, Revised Statutes, which is as follows: “The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator appointed by that court for the purposes of administration. ’ ’
From the provisions of that section it will be observed that the title to both real and personal property of one who dies without disposing of it by will passes to the heirs of the in
It is shown by the record that the personal property belonging to said estate was of the value of $1,146.70, and the real estate belonging thereto (it being the real estate involved in the sale in question) was of the value of about $3,500, making a total of $4,646.70, and the liabilities were about $2,357.85. Deducting the liabilities from the assets would leave the heirs of the estate about $2,088.85. After applying the personal property in paying the liabilities there would remain liabilities to the amount of $1,211.15, to be paid out of the real estate. It will be observed from this that the heirs were interested in the real estate to the extent of more than $2,000. Their guardian ad litem had appeared in the proceeding to sell said real estate and consented to the sale, and after the sale was made and a return of such sale made to the probate court for confirmation, the guardian ad litem being satisfied with the sale, of course, raised no objection to it. But the appellant who had purchased said real estate at the sale did raise certain objections to the proceeding for the sale and objected to the confirmation thereof. The court, however, overruled his objections and confirmed the sale. The appellant was thus endeavoring to defeat the sale which was satisfactory to the- heirs and their guardian ad litem. It is very apparent that they would be affected by a modification or a reversal of the order confirming the sale. That being true, they were adverse parties to said proceeding to set aside
It is contended by counsel for appellant that as the guardian ad litem did not appear at the hearing for the confirmation of said sale, he is not entitled to service of a notice of appeal, as that was a separate proceeding and a separate order from that consenting to the sale. We are unable to concur in this contention, for when an application is made by an administrator to sell real estate of an intestate, the hearing of the application to sell and the hearing on the confirmation of the sale, if one follows, are all parts of one and the same proceeding — that is, the proceeding to sell real estate — and after the guardian ad litem appeared and consented to the sale, he had then appeared in the proceeding to sell and was entitled to be served with notice of appeal from any and all orders made in said matter. We cannot segregate the several things that must be done by a probate court in ordering •and confirming a sale and hold each part thereof a separate proceeding. The proceeding is begun by filing the petition of the administrator and is ended by the confirmation of the sale and delivery of the deed to the purchaser. It is a theory of our law that every person interested shall have his day in court, and for that purpose must be served with proper notice and given an opportunity to appear if he cares to do so. As all of the property of one who dies without disposing of it by will passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of an administrator, those heirs are pecuniarily interested in all of said property, and especially is that true if all the property is of sufficient value to pay all the debts of the -intestate and leave a surplus for the heirs. The motion to dismiss must be sustained, and it is so ordered, without prejudice to another appeal. Costs are awarded to the respondent.
Rehearing
ON PETITION POR REHEARING.
A petition for rehearing has been filed in this case, and while it does not present any new question we have thought it best to refer to some of the points dwelt upon therein. Counsel for petitioner argues that the decision of this court renders ineffective the provisions of section 1 of the act of March 11, 1903 (Sess. Laws 1903, p. 372). By the provisions of that section the appellant is only required to serve such adverse parties as “appeared upon the motion or proceeding which the appellant desires to have reviewed or upon their attorneys.” We have not intended to go beyond the provisions of that statute and have not done so. In the ease at bar the minors appeared through their guardian ad litem at the time the order of sale was made, and we hold that each step taken from the time the order of sale was made until its confirmation constituted only a part of the one “proceeding.” It is true that under section 4831, Revised Statutes, an interested party dissatisfied with the order or decision of the court may appeal either from an order directing a sale or from an order directing a conveyance of the property. An appeal, however, from the order directing a conveyance would not authorize a review of the action of the court in directing a sale, since the statute has specifically authorized an appeal from each order and has fixed a time within which each appeal must be taken. That all the various steps necessary and required to be taken in order to make a sale and give title to real estate by direction of the probate court are each a part of one “proceeding” within the meaning of section 1 of the act of March 11th (Sess. Laws 1903, p. 372), we have no doubt whatever. All of the various steps in such proceeding look to only one end; namely, the pass