33 Mont. 230 | Mont. | 1905
Lead Opinion
delivered the opinion of the court.
Appeal from an order of the district court of Silver Bow-county directing a sale of real estate belonging to the estate of James Tuohy, deceased.
James Tuohy died on or about October 2, 1893, in Silver Bow county. His estate consisted of a small amount of personal property and certain real estate, chiefly undeveloped mining claims. He left a will which, after disposing of most of the estate by special bequests, closes with this clause: “I hereby appoint Cyril Pauwelyn, of Butte, sole heir and executor of this my last will and testament, without bonds.” Cyril Pauwelyn, having qualified as executor under an order of the district court, entered upon the discharge of his duties and has continued therein. Soon after his appointment litigation arose involving the validity of claims against the estate to a large amount, sufficient, if established, together with the undisputed claims, to consume the entire estate. The last of this litigation was finally disposed of about' March 25, 1903, the principal claim having been declared invalid.
On March 22, 1894, the executor filed his petition for an order to sell a portion of the real estate, alleging facts showing a necessity therefor. For some reason, doubtless because of the pending litigation and uncertainty as to the amount of funds necessary to pay claims, this petition was abandoned. Thereafter some of the mining claims were leased, with the expectation that a sufficient amount would be realized from roy
It appears that three parcels of the real estate are not mentioned in the will, namely, an undivided one-half interest in the Malone lode claim, and the Belmont and Amy claims. Specific bequests are made of all the rest of it, Daniel Shields being mentioned as devisee of an undivided one-fourth interest in the Tuolumne lode claim, and Thomas McLaughlin as devisee of a lot and house thereon, in the city of Butte.
Appellants Shields and McLaughlin appeared and objected to the granting of the order of sale. Shield’s objections are, in substance, first, that for more than ten years prior to the fil
Thereupon the court made its findings of fact and conclusions of law, and entered an order directing a sale. The court found that the debts, costs and expenses of administration already accrued against the estate amount to $14,417.45, with interest; that there was -no money belonging to the estate to pay the same; that the real estate was not yielding any revenue, and ' that the sale of all of it was necessary to pay the debts. The court further found that there had been no unreasonable delay. on the' part of the executor in making application for the order of sale; that the property mentioned in the petition belongs to the estate; that none of it has been delivered to the heirs or devisees by the executor, and that the same is in the control of the executor and under the direction of the court.
Upon these facts and conclusions of law the court entered its order directing the executor to sell so much of the real estate as may be necessary to pay the debts, claims and expenses of the estate, and the costs and expenses of administration accrued or that may hereafter accrue, either in one parcel or in subdivisions, as the executor should judge most beneficial to the estate, and in the order prescribed by the statute and the foregoing findings and conclusions; and that when he shall have sold sufficient for the purposes aforesaid, he shall not sell or offer for sale any more. From this order, so far as it directs the sale of the interests devised to them respectively, Shields and McLaughlin have prosecuted this appeal.
1. Contention is made that the order cannot be sustained because the court denied the appellants a trial by jury upon the issues presented by their objections. Without pausing now to inquire whether any material issues are presented by the objections, but assuming this to be so, and assuming further that upon every like application wherein material issues of fact arise, the right of trial by jury exists, there is no merit in the contention. The Code of Civil Procedure provides: “Sec. 2923. AJÜL issues of fact in probate proceedings must be tried in conformity with the requirements of Article II, Chapter II, of this Title, and in all such proceedings the party affirming is plaintiff,' and the one denying or avoiding is defendant. * * *
The provisions of Article II, Chapter II, of Title XII, to which section 2923 refers, relate to contests arising over the probate of wills. Section 2340 of Article II, Chapter II, of this Title provides, among other things, that upon the presentation of any one or more of the issues of fact enumerated therein, they must, ‘ ‘ on request of either party in writing, filed three days prior to the day set for the hearing, be tried by a jury. If no jury is demanded, the court or judge must try and determine the issues joined. * * * ” Under this section it is clearly the duty of the court or judge to try the issues joined, without a jury, unless one is demanded in the manner and within the time prescribed therein. Its requirements presuppose issues joined before the demand for a trial by jury is made. The policy of the law is that proceedings of this nature should progress as speedily as they may, to the end that the affairs of the estate may be closed up and the parties in interest discharged from the supervision of the court. The presiding judge is not supposed to know what issues, if any, are to be made until the pleadings are filed, and not then until attention is called to them. If in any case no issue of fact is presented, the presence of a jury is unnecessary. The section, therefore, not only requires the issues to be made up before the demand is made, but also that the demand be made a« sufficient length of time before the hearing to secure the attendance of a jury.
Sections 2923 and 2924, supra, are general in their application, while section 2340 refers only to contests over the probate of wills, but the provisions of the latter must be read into the former and be observed whenever the parties desire an issue of fact to be tried by a jury.
2. The next contention made is, that the order is erroneous in that it directs a sale of all the real estate, including that devised to appellants, whereas it appears from the objections that these devises were respectively made for a valuable consideration, and therefore that the court could not direct a sale of property so devised until after a disposition of all the other property belonging to the estate. We think this contention is without merit for two reasons: First, the application for the order in this case was made under section 2671 of the Code of Civil Procedure, which lays down the procedure necessary to obtain an order for the sale of real estate. The section provides what the verified petition filed in support of the application abnll contain. It must set forth the amount of personal property that has come into the hands of the administrator, and how much, if any, remains undisposed of; the debts outstanding against the decedent, so far as they can be ascertained or estimated; the amount due upon family allowances, or what will be due after the same have been in force for one year; the debts, expenses and charges of administration already accrued, and an estimate of what will or may accrue during the administration; a general description of all the real property of which decedent died seised, or in which he had any interest, or in which the estate had acquired any interest, and the condition and value thereof; and the names of the legatees and devisees, if any, and of the heirs of the deceased, so far as known to the petitioner. Upon these necessary allegations it is not possible for an issue as to
In the second place, section 1822 of the Civil Code provides: “The property of a testator, except as otherwise specially provided for in this Code and the Code of Civil Procedure, must be resorted to for the payment of debts, in the following order: 1. The property which is expressly appropriated by the will for the payment of debts. 2. Property not disposed of by will. 3. Property which is devised or bequeathed to a residuary legatee. 4. Property which is not specifically devised or bequeathed; and 5. All other property ratably. * * *”
It will be seen from an examination of this section that no distinction is made between specific devises for charitable purposes, and those made upon consideration. They are placed upon the same footing. If the property mentioned in the first four classes designated by the statute is not sufficient, specific devises, no matter for what purpose, are to be resorted to rat-ably ; for such devises clearly fall in the fifth class in the enumeration. The appellants have no right to have the property devised to them exempted from sale for the payment of debts, or the sale of it postponed until other property specifically de
By the terms of the will, as appears from the record, all the property belonging to the estate, except from the interest in the Malone lode and the Amy and Belmont claims, was disposed of by specific devises to the appellants and others. On the theory assumed by the appellants to be correct (and we think it correct, though the will is not now before us for construction), that by the last clause of the will the executor is made residuary legatee, these interests go to him. They therefore fall in the third class in the enumeration and must be resorted to and exhausted before the property devised to appellants is burdened with any part of the debts. (Code of Civil Proe., sec. 2678.) When, however, the property falling in the first four classes has been exhausted, no distinction may be made among specific devises, but all must bear the burden ratably. In view of these express provisions of the statute, the cases cited by counsel for appellants, in which the courts of other jurisdictions have applied the rule contended for, are not in point. In any event, in this state the court, upon a hearing of the application for the sale of real estate, has no power to proceed except in conformity with the statute. If the devise to either of the appellants was made under such circumstances as would warrant a decree requiring the executor to convey to him, the questions involved and a decree thereon can be had only in a court of equity in an action brought for that purpose. The order made in terms directs the executor to proceed to sell in the order prescribed by the statute, and presumably he will do so and first exhaust the property not specifically devised.
3. Evidence was offered by the appellants tending to show that they had been in the possession of the property devised to
While an application to sell real estate does partake somewhat of the nature of an action (Broadwater et al. v. Richards, Admr., 4 Mont. 80, 2 Pac. 544, 546), it is in no sense of the term an action to recover real estate or the possession of it. Nor is it an action arising out of the title thereto, or the rents and profits thereof. Under our system, the whole of the estate, both real and personal, goes into the possession of the executor or administrator, first for the payment of debts, and then for distribution under the will or the laws of succession. (Civil Code, secs. 1821-1823, 1826, 1850 et seq.; Code of Civil Proc., sec. 2559.) Claims of creditors must be presented for allowance within the time prescribed by law, after notice has been published (Code of Civil Proc., sec. 2603), or they are forever barred, whether they are due, not due, or contingent. If a claim is barred by lapse of time at the date of presentation, it may not be allowed. (Sec. 2609.) If rejected, action must be brought against the administrator in the proper court within three months thereafter, or it is barred. (Sec. 2608.) Upon the coming in of the account, the heirs or devisees may contest and have rejected any claim allowed in violation of these provisions. (Secs. 2784, 2791; In re Mouillerat’s Estate, 14 Mont.
4. Contention is made that the court, in the exercise of its sound discretion, should have denied the application on the ground of the palpably unreasonable delay of the executor in presenting it. Whether or not gross negligence or palpable laches on the part of the executor or administrator is sufficient reason for denying an order of sale in a given case, we do not deem it necessary to discuss or decide. There is abundant authority in support of the affirmative of the proposition. (Estate of Crosby, 55 Cal. 574; Mooers v. White et al., 6 Johns Ch. 360; Wolf et al. v. Ogden, 66 Ill. 224; McCrary v. Tasker et al., 41 Iowa, 255; Ricard v. Williams et al., 7 Wheat. 59, 5 L. Ed. 398; Ex parte Allen, 15 Mass. 58; 2 Woerner on the American Law of Administration, see. 465.) The policy of the statute requires the administration to be conducted speedily to a close. This fact also lends support to the rule contended for by the appellants. Here, however, the parties — assuming that such a defense could be invoked — tried the question of laches, and the
While the findings and conclusions of the court cover matters not properly within scope of the application and the order is somewhat indefinite in its terms, we think the Court did not commit any prejudicial error, and that the order should be affirmed.
Affirmed.
Rehearing
On Motion for Rehearing.
delivered the opinion of the court.
Appellants have filed a petition for a rehearing of this cause.
1. Though the finding referred to is recited in the statement of facts preceding the opinion of this court, it is clear from even a casual reading of the opinion that the judgment can have no such effect as counsel anticipate. If the question of title could not be inquired into and determined by the district court, it must follow that any finding upon that subject by that court was wholly outside of the purview of the application and immaterial. The concluding paragraph of the opinion applies to this finding, though special mention is not made of it. It was error for the court to make a finding upon a matter falling entirely outside of the purview of the application; yet it was error without prejudice and appellants cannot complain.
2. The second ground of the petition proceeds upon the assumption that one purpose of the objections made by appellants in the district court was to secure a delay of the sale, in order to protect the property from sacrifice until the question of title could be determined by a court of competent jurisdiction, whereas they were intended to prevent the sale altogether.
The petition is denied.
Denied.