128 P. 913 | Mont. | 1912
delivered the opinion of the court.
Mary Goodman died intestate in Lewis and Clark county on November 15, 1911, leaving an estate consisting of real and personal property. Henry Sheehan was appointed the administrator by Hon. J. Miller Smith, the judge presiding in department 2 of the district court of Lewis and Clark county. The relatrix herein is entitled to a distributive share in the estate, as assignee of Jacob Goodman, a son of the deceased, she being recognized as such assignee both by the court and the other persons entitled to distributive shares therein. On June 20, 1912, the court made and entered its decree settling the final accounts of the administrator and directing distribution of the residue of the estate, which, except certain household furniture, consists of separate pieces of real estate situated in the city of Helena. The relatrix was declared entitled to an undivided one-ninth interest. In the meantime, on May 31, she had filed her petition alleging that the property constituting the estate could not be fairly divided among those entitled to it, without partition by one or more commissioners appointed by the court for that purpose, and asking that such commissioners be appointed. On June 20, after the decree of distribution had been made and with the consent of all the distributees, the court appointed John N. Glass commissioner to make the partition. The decree of distribution deferred final discharge of the administrator until partition should be made. The order of appointment required the commissioner, in case he ascertained that partition by allotment could not be effected without prejudice to the interests of the distributees, to so report to the court and also to report the true value of the property. On June 27 the commissioner reported in writing that partition could not be made by allotment without prejudice to the interests of the distributees. He stated the value of the property to be $3,227, recommended that it be sold, and that the proceeds be distributed, and prayed that an order be made authorizing him to make the sale. On the same day the court made an order directing the commissioner to sell at public or private sale and report his action. The commissioner not hav
In pursuing the course he did, Judge Smith evidently proceeded upon the assumption that the decree of distribution was a final disposition of the administration and that the attempt to disqualify him came too late. Under section 6315 of the
The proceeding for partition, either by allotment, assignment or by sale and distribution of the proceeds, is authorized by the Codes (secs. 7678-7689). It becomes apparent upon examination of these provisions that the purpose of the legislature in enacting them was to vest in the court, when sitting in probate, the power to partition among the distributees of an estate entitled to interests therein, real or personal property owned in severalty by the decedent in his lifetime, thus obviating the necessity for an independent proceeding brought after the close
Let the writ issue as prayed for.
Writ granted.