111 P. 717 | Mont. | 1910
delivered the opinion of the court.
Upon June 3, 1909, Harry Stover, a resident of the state of California, died intestate leaving certain personal property in
There is hut one question presented for our determination, vis.; May the district court, sitting in probate, refuse to confirm
Our district courts have exclusive original jurisdiction in probate matters (Constitution, Art. VIII, see. 11). This court has held that in the exercise of that jurisdiction the courts are limited in authority to that expressly conferred by statute or necessarily implied. (Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334, and cases cited.) Authority to confirm a sale of personal property belonging to an estate is expressly granted by section 7548 above. What, if any, authority is implied? Since-a return of sale must be made to the court before confirmation, it follows that the authority is implied for a hearing upon such return. It cannot be that the court is compelled to confirm a sale without inquiry. In fact, counsel for relator do not insist upon this. If, then, the court has authority to order a hearing upon the return, it necessarily follows that if the result of such hearing discloses that the sale ought not to be confirmed, the court has authority, necessarily implied, to refuse confirmation; otherwise the whole proceeding would be farcical.
Let us suppose that King’s bid for this property had been but $250 and a sale to him for that amount had been ordered, would it then have been incumbent upon the district court or judge to-
A reference to some of the provisions of the Codes dealing with probate matters will serve to indicate the general policy of the law. The court may require an executor or administrator to furnish additional securities on his official bond (sections 7458, 7466); it may suspend the powers of such an officer (sections 7465, 7488); or may revoke the letters of such an officer (section 7500); or may remove such officer from his trust (section 7719). The court may of its own motion require frequent reports from an executor or administrator (section 7634), and may, without notice having been given, order the sale of perishable property of an estate (section 7551). Pending settlement of an estate, the court may order that money belonging to it be loaned at interest (section 7652). Now what is the purpose running through all these provisions? Clearly to place in the hands of the court authority sufficient to secure a just administration of the estate, to the end that creditors may be protected and the heirs receive the largest amount of the property compatible with an economic but complete administration of the estate. This idea is conveyed to us in expressions frequently appearing in the Codes dealing with probate matters; such, for instance, as the following: “If it appears to be for the best interest of the estate,” etc.; or: “If it appears to the court to be for the advantage of the estate,” etc., certain things are to be done. In other words, the probate court is charged with the oversight of probate matters, and its duty in the premises is to see that the best interests of the estate are promoted by the officer (executor or administrator) who is charged with the administration of the estate. When, then, a return of sale of personal property is made, it is the duty of the court to examine into the
The successful bidder at an administrator’s sale does not occupy the position of one of two individuals who are trading between themselves and dealing at arm’s-length. Such successful bidder is not a purchaser as that term is generally understood. He knows that without the approval of the court his bid amounts to nothing; or, to state the same principle differently: While, ordinarily, there are but two parties to a sale of personal property—the seller and the buyer—in a sale of personal property belonging to an estate there are in truth three parties to the transaction, viz.: (1) the seller, that is the estate, repre■scntedby the administrator; (2) the buyer; and (3) the district court. The buyer and seller may make any sort of an agreement, but without the approval of the court they have their trouble only for their reward; for their transaction is not a completed sale until confirmed by the court. The authority of the court to refuse confirmation of a sale of personal property when a much better bid is received, though not granted by express statutory enactment, is implied and is necessary in order that the purpose of the law be carried into effect. In this we do not disregard the right of the successful bidder, but only give emphasis to the fact that the interest of the estate is paramount.
The statutes of Indiana are substantially the same as our own. In Williams v. Perrin, 73 Ind. 57, the court was considering just such a case as the one before us, and in disposing of the question it said: “In reference to sales of real estate by administrators and guardians, it is expressly enacted that the sales shall be reported to the court for confirmation, and, if the court be satisfied that the sale had been unfair, or that a sum exceeding the sum bid or agreed on at least ten per cent, exclusive of the expense of the sale, can be obtained, the court may vacate the sale. While there is no such express provision with reference to sales of personalty, made under the order of the court,
Our conclusion is that from the express provisions of section 7548 above, there is implied authority for the district court or judge to exercise a judicial discretion in determining whether a particular sale of personal property belonging to an estate shall -or shall not be confirmed. The Egan bid exceeds the bid made by King by $1,025, exclusive of cost of resale. In our opinion It cannot, then, be said from the record that the district court abused its discretion in- this particular instance in refusing to -confirm the sale made to King.
The motion to quash is sustained and the proceeding is dismissed.
Dismissed.