34 Mont. 226 | Mont. | 1906
Lead Opinion
delivered the opinion of tbe court.
On January 31, 1906, John Eakins died in Silver Bow county, leaving an estate therein and leaving a will by tbe terms of which Mary A. Eakins, this relatrix, is named, as wife of decedent, as legatee and devisee in tbe will and as executrix of tbe will. Tbe other legatees and devisees are two minor sons and two adult sons of tbe deceased.
On February 14th, tbe relatrix presented to tbe district court a petition asking for tbe probate of tbe will and her appointment as executrix. Notice of the bearing of tbe petition was
The' only authority which a district court has for appointing a special administrator is found in section 2500 of the Code of Civil Procedure, which reads as follows: “When there is delay in granting letters testamentary or of administration, from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an executor or administrator dies, or is suspended or removed, the court or judge must appoint a special administrator to collect and take charge of the estate of the decedent in whatever county or counties the same may be found, and to exercise such other powers as may be necessary for the preservation of the estate.” Of course, the phrase “from any cause” means from any legal cause. The only cause for any delay whatever in this instance was the filing of the objections by the guardian ad litem and the court’s consideration of such objections. The court appears properly
Did the filing of the objections by the guardian ad litem furnish legal cause, or any cause, for delay? The provisions of law relating to the appointment of a guardian ad litem are found in section 574 of the Code of Civil Procedure. Those provisions and the provisions of section 575 are a part of Title III, Part II, of the same Code. Part II is entitled “Civil Actions,” and Title III thereof is entitled “Parties to Civil Actions.” Probate proceedings comprise Title XII of Part III, same Code, and Part III is entitled “Special Proceedings of a Civil Nature.” Section 2925 is one section of Title XII, Part III, above, and is as follows: “At or before the hearing of petitions and contests for the probate of wills; for letters• testamentary or of administration; for sales of real estate, and confirmation thereof; settlements, partitions and distributions of estate, setting apart homesteads, and all other proceedings where all the parties interested in the estate are required to be notified thereof; the court or judge may, in its or his discretion, appoint some competent attorney at law to represent in all such proceedings the devisees, legatees or heirs, or creditors of the decedent, who are minors and have no general guardian in the county, or who are nonresidents of the state; and those interested, who, though they are neither such minors or nonresidents, are unrepresented. * * * ”
These provisions of this last section are special, are applicable only to probate proceedings as distinguished from civil actions or other special proceedings of a civil nature, and must be held
This decision is referred to and approved by the supreme court of the United States in Robinson v. Fair, 128 U. S. 53, 9
Under this view of the matter, then, it was the duty of the district court to strike from the files the objections made by the public administrator and the so-called guardian ad litem, and proceed to hear and determine the petition for the probate of the will. If these objections had been stricken from the files or wholly disregarded, as they should have been, there was not then any legal cause, nor any cause, for delay. And if there had been any legal cause for appointing a special administrator, the court directly violated the provisions of section 2502 of the Code of Civil Procedure in appointing the person whom it did appoint, in preference to others first entitled to such appointment. But so far as this record shows, there was not any cause whatever for the appointment of a special administrator, and, in the absence of legal cause, the dis'trict court did not have jurisdiction to make the appointment of- which complaint is made. (In re Ming, 15 Mont. 79, 38 Pac. 228:)
But it is said that, as this relatrix asked that she be appointed special administratrix pending the hearing of the petition for probate of the will, she cannot complain that the court appointed O ’Reilly. But, if the court did not have jurisdiction to appoint anyone to such office, then nothing that this relatrix did could confer such jurisdiction. In point of law, there was not anything before the district court, except the petition for the probate of the • will, and in appointing 0 ’Reilly special administrator the district court acted without any legal cause appearing why such appointment should be made, and, therefore, exceeded its jurisdiction.
Order annulled.
Concurrence Opinion
I concur. A grand jury, commenting on probate matters in this state about fifteen years ago, in its report to the court said: “Administration of estates is spoliation of estates.” As it is always the property of the widow and children, or both, of the deceased person which pays the lawyers, executors, administrators, appraisers, et al., and the size of the fees in most cases is fixed by the court, frequently with extra allowances for “extraordinary services,” the courts should be anxious and very careful to limit the number of lawyers and other officers to the fewest possible in number, and should not appear to insist on appointing self-seeking persons to lucrative positions: In this ease there seems to me to be undue persistency on the part of citizen O’Reilly in demanding that he be allowed to serve (not merely as public administrator, even if in his public capacity he may properly appear, which, as shown in Mr. Justice Holloway’s opinion, he may not properly do). I think that our former determination of this matter ought to have been conclusive.
The district judge, sitting in probate proceedings, is the representative of the dead person, his creditors, if any, and of the orphan, rich or poor, and of the law made for the protection of the sometimes helpless, and should, in the exercise of his solemn duty and of his own motion, oppose all efforts of strangers to profit by the death of the head of the family or of anyone else. The district court should be earnest, active, anxious and solicitous in all matters connected with the estate of deceased persons, and in dealing with the helpless children, with the intent to save as much as possible of the assets for those to whom they belong. He should not be complacent in dealing with people who are desirous of increasing the number of aids, as