182 P. 189 | Utah | 1919
Lead Opinion
The plaintiffs named in the title, hereinafter called respondents, commenced this action in the district court of Salt Lake county as heirs at law of one Harvey Weyant, deceased. The action is predicated upon a statutory administrator’s bond executed by one Rosella Fuller, as principal, and the appellant, as surety; said Rosella Fuller having been appointed the administratrix of the estate of said Harvey Weyant, deceased. Respondents obtained judgment on said bond against appellant, from which it prosecutes this appeal.
The pleadings, including the attached exhibits, findings of fact, conclusions of law, and judgments in the several pro-
One Harvey Weyant, whose estate constitutes the subject of this controversy, died intestate at Salt Lake City, Utah, on the twenty-sixth day of July, 1910. The respondent Charlotte Weyant, at the time of the death of said Weyant, was Ms lawful wife, and all the other respondents named in the title, except Carry Miller Clark, were his children and the issue of the marriage between the deceased and said Charlotte Weyant, while said Carry Miller Clark is a grandchild of said Weyant. Harvey Weyant had lived with his said wife and children at Springfield, Mass., for many years, and until May, 1890, at wMch time he abandoned them and eloped with one Rosella McIntyre, a young girl about seventeen years of age, to parts unknown to Ms family. Said Weyant and said Rosella McIntyre, under the name of Rosella Fuller, in diie time arrived at Salt Lake City, and from thenceforth until the death of said Weyant lived in said city as husband and wife under the name of Fuller; that is, said Weyant from thenceforth assumed and was known by the name of Harvey W. Fuller, and said Rosella McIntyre was known as Mrs. Fuller. He conducted business in that and in no other name during the twenty years that he lived in Salt Lake City. After the departure from his home at Springfield, said Weyant never returned thereto, and his place of residence or abode was unknown to his said wife and cMldren, and although they expended considerable money searching for him, they did not learn of his abode or death until the month of September,
In said action the court in substance found the facts here-
“If the said Rosella Puller shall faithfully execute the duties of the trust according to law as such administratrix, then this obligation to be void; otherwise, to be and remain in full force and virtue.” ■ <
The court also found that Rosella Fuller, in furtherance of her deceitful and fraudulent purpose and design, had wrongfully and fraudulently converted money and property of said estate to her own use of the value of $26,091.47, and that execution had been duly issued against her and returned unsatisfied, except for the sum of $489.35. In addition to the foregoing, the court, in the equity proceeding aforesaid, upon a supplemental complaint and proper proceedings had thereon, also made supplemental findings of fact and conclusions of law, in which it is in substance found that, in addition to the property aforesaid, said Rosella Fuller, by virtue of her ap
The conclusions of law are quite long. They, however, fairly reflect the findings of fact, and hence we need not repeat all of them here. In view of appellant’s contention, however, as hereinafter disclosed, it becomes necessary to set forth here one of the conclusions of law in full. It reads
“That the value of the moneys and property so converted by the said Rosella Fuller as administratrix, and while she was such administratrix, and which she in violation of the orders and judgments of the court in the premises has failed and refused to account for, in which, as' heretofore found and adjudged, was a breach of her trust and duties as such administratrix of said estate, and a breach of the bond or undertaking sued on in this action, is the sum of $38,414.07.”
The court also found as a conclusion of law that respondents were entitled to judgment against the appellant for the sum of $37,000, with legal interest on the sum of $25,732.67 of said amount from a certain date, and with legal interest on the sum of $11,277.33 (should be $11,267.33) from a certain other date. Judgment was entered accordingly. ^
"We deem it essential to further state here that in the pro-hate proceedings, after the final account of Rosella Fuller as administratrix had been approved and allowed and the decree of distribution had been entered, the court also entered an order or judgment of discharge in the following words:
“It is ordered, adjudged, and decreed that said Rosella Fuller, as aforesaid, has fully and faithfully discharged the duties of her trust; that she is hereby wholly and absolutely discharged from all further duties and responsibilities as such administratrix, and*198 that her letters of administration are hereby vacated; that the said estate is declared fully distributed, and the trust settled and closed; and the said Rosella Fuller, administratrix, and her sureties, are hereby released from any liability to be hereafter incurred.”
We remark that, while the judgments or decrees against Rosella Fuller, alias Morgan, go into great detail and adjudicate that all of the orders, proceedings, and decrees that were entered in the matter of the administration of the estate of ITarvey Weyant were obtained through and by means of the deceitful and fraudulent acts and representations of said Rosella Fuller, alias Morgan, as administratrix of said estate, and that, so far as respondents are concerned, all of said orders, decrees, and proceedings were of no force or effect, and although the respondents prayed that the final settlement of the account of said administratrix and decree of distribution and the probate proceedings be vacated, and also prayed for general relief, yet the court did not in express terms set aside or vacate either of the orders aforesaid, nor did the court in express terms vacate, the order or judgment of discharge. It further appears from the proceedings that the respondents instituted an action in Idaho against said Rosella Fuller, alias Morgan, for the purpose of charging certain real estate that she had purchased there with a trust, alleging and establishing that she had used the sum of $1,000 which she obtained from the estate of said Weyant to pay for said real estate, and it was accordingly adjudged that the respondents have a lien upon said land for the amount of said $1,000, which, it seems, they subsequently realized. It was also adjudged in said decree:
“That the defendant Rosella Morgan, alias Rosella Fuller, held the property described in paragraph 1 in trust for plaintiffs herein according to their rights.”
While appellant’s counsel have assigned a large number of errors, yet in their printed brief and in their oral argument they have condensed .them into nine propositions, some of which, however, they themselves concede blend and overlap one another. We shall consider such propositions argued as we deem material, and we shall do so without following
The first proposition contended for by appellant’s counsel in their brief is stated thus: '
“The probate proceedings and the decree rendered therein are in rem, and are conclusive against the whole world, and cannot be impeached or opened by another court in or by any other action, but only by proper application in the same proceedings or upon appeal.”
Counsel have cited a large number of decisions and text-writers which they contend, support the foregoing proposition. We shall not attempt to cite, much less review, all of the decisions cited by counsel, but shall cite only a few cases upon each proposition discussed, leaving it to the reporter to make a full citation of the cases and authorities referred to by counsel in their respective briefs.
Among the authorities cited and relied on by appellant’s counsel are the following: 23 Cyc. 1407-1411; 18 Cyc. 628-642; 1 Black, Judgments, section 445; Toland v. Earl, 129 Cal. 148, 61 Pac. 914, 79 Am. St. Rep. 100; Solder v. Solder, 135 Cal. 323, 67 Pac. 282, 87 Am. St. Rep. 98; Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 Am. St. Rep. 117; Simmons v. Saul, 138 U. S. 453, 11 Sup. Ct. 369, 34 L. Ed. 1054; State v. Blake, 69 Conn. 64. Counsel, however, frankly concede that the territorial Supreme Court of Utah, in the case of Benson v. Anderson, 10 Utah, 135, 37 Pac. 256, held that courts of equity do possess power to grant relief against the orders and judgments entered in probate proceedings upon the same ground that such courts can grant relief against judgments entered in other actions or proceedings. It is also conceded that the foregoing decision is based upon practically the same statute on which the California decisions are based, which, they contend, hold to the contrary. It must be conceded that the Supreme Court of California has, in at least a number of cases, held that courts of equity may not interfere with the judgments entered in probate proceedings to the same extent that such may be done in other civil actions or proceedings. It is accordingly held in California that, although a court of equity may grant relief against judgments and decrees ob
Referring, now, to a somewhat later California decision, and to at least one emanating from another court which is based upon the California statute and procedure relating to the administration of estates, we find that in a quite recent case emanating from the District Court of Appeal of California, namely, Nicholson v. Leatham, 28 Cal. App. 597, 153 Pac. 965, 155 Pac. 98, it is held that the rule contended for by counsel does not apply with full force in cases “where there has been a breach of duty arising from a fiduciary relation” and extrinsic fraud has been established. In a recent case emanating from the United States Circuit Court for the Northern District of California, namely, Goodrich v. Ferris, 145 Fed. 844, which decision is based upon the California, statute and procedure relating to the administration of estates, it is held that—
“A court of equity is without jurisdiction of a suit to set aside a decree of a superior court of California, entered after due notice given as required by statute, distributing the estate of a testator in accordance with his will, which has been duly probated, and to have the will declared invalid, unless un$er extraordinary circumstances where fraud or a breach of trust extrinsic to the proceedings is shown.” (Italics ours.)
It would seem that even under the California rule, as construed by the more recent decisions, conditions may arise in probate proceedings which, if established, will authorize a court of equity to grant relief in an independent action. It should be observed, however, that in the case last above quoted from it is expressly said, ‘ ‘ after due notice given as required by statute.” Undoubtedly, the giving of the statutory notice is always a prerequisite to the conferring of jurisdiction upon the court. This court is committed to the doctrine contended
It may as well be stated here as anywhere else in this opinion that this court is also firmly committed to the doctrine that attacks like the one made in this ease in the
The question as to what extent relief may be granted by courts of equity in probate proceedings under circumstances disclosed by this record is now presented for the first time since the creation of our courts by our Constitution. In this connection let it be remembered that the fraud alleged to have
In this connection counsel for appellant insist that the statutory notice was in fact published in due form and for the time required by statute. As a matter of form that statement is undoubtedly correct. So far as the creditors of Wey-ant’s estate were concerned, who dealt with him and knew him only by the name of Fuller, the notice referred to may be said to have been duly given. Can that, however, also truthfully be said with regard to the respondents? Was notice published in the name of Harvey W. Fuller notice to them? Would it not have had the same effect in law if the notice had been published in the name of Brown, or Jones, or Smith ? Must it not be conceded, therefore, that, so far as respondents are concerned, the matter stands as though no notice was given? Let us assume that A. prefers a claim against B.; that B. is absent from, but has property, within, the state; that A., although he knows his claim is false, fraudulent, and fictitious, nevertheless causes B.’s property to be attached, and publishes notice, not in the name of B., but in a false and fictitious name, and gets judgment against B. for the amount of his claim and an order for the sale of the attached property, which is accordingly. sold. Let us further
In this ease it is also conceded that the respondents were absent from the state of Utah and did not learn nor have any knowledge of the probate proceedings until
“Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estate, and in cases of guardianship, as shall be provided by law.”
A reference to that section of the Constitution makes it manifest that, when it says that appeals shall lie from the final orders and decrees of ihe court, the district court, and no other court, is referred to. The district courts of this state are therefore invested with jurisdiction in probate matters precisely the same as they are invested with all -other civil and criminal jurisdiction. They transact probate business as they do all other civil business. True, in administering estates they follow the established law and rules of procedure applicable to those matters, the same as they follow the established law and rules of procedure applicable to so-called equity or law cases. Moreover, our Constitution provides that “there shall be but one form of action, and law and equity may be administered in the same action. ” We therefore have no courts which are known as probate courts, or as law courts, or as equity courts; but we have courts possessed of general original jurisdiction, which are known as district courts. The district courts of this state, therefore, administer the estates of decedents as a part of their original jurisdiction, the same as they hear and enter judgments on promissory notes, or enter decrees in equity, foreclosing mortgages or quieting titles. The Constitution of this state, however, also, in article 1, section 11, in which is contained the Declaration of Rights, provides:
“All courts stall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay.”
Counsel’s theory respecting action and remedies is well illustrated in their reply brief, where they insist that respondents could have availed themselves of at least four civil remedies. Strange enough they also insist that the remedy pursued by respondents is not the proper one. Such a position, therefore, assumes that forms of action still exist and. that
From a consideration of all the foregoing provisions and statements, it necessarily follows that in this state there is no such a thing as a particular form of action,
We are also of the opinion that, for the reasons already advanced, the district court of Salt Lake county, in the proceeding commenced by respondents in September, 1915, when they first learned of the fraud practiced upon them and on the court of Salt Lake county by the administratrix of the decedent’s estate, was not limited to merely declaring, her a trustee, and as such holding the property in trust for respondents. To thus limit respondents, in view of the facts established in this case, would amount to a denial of any substantial relief. True, as counsel for appellant contend, the facts developed in a particular ease may nevertheless be such as to entitle the complaining party to limited relief only. The facts and circumstances might, doubtless, be such that an heir, though despoiled of his inheritance by the wrongful and fraudulent acts of the administrator, might nevertheless not be permitted to recover from the sureties on the administrator’s bond.
In this case, however, the administratrix, so far as respondents are concerned, acted directly contrary to and in the very teeth of the duty imposed upon her by law and by the bond that is sued on. It was the duty of the administra-trix, under the law, to publish proper notice, so as to apprise the heirs, and all others' interested in the estate, of its true condition; and when she failed to do that, but published notice in a false and fictitious name, known to her to be so, she utterly failed to “faithfully execute the duties of the trust according to law,” as provided in the bond. Nor did she, as the bond provided, administer the.estate “for the use of the heirs” of the deceased, as she was bound to do. Nor did the wrongs committed.by her occur after the decree of distribution, nor when acting in a capacity other than that of ad-ministratrix. It is sometimes somewhat difficult to determine whether the wrongful acts complained of occurred at a time when the administrator is acting as such, or whether they oe-
In the probate proceeding here in question, however, the administratrix not only failed to publish proper notice, so far as respondents are concerned, but she utterly failed to make and return a true and complete inventory of the property belonging to the estate. Again, she converted to her own use about $12,000 worth of property of the estate without making an inventory thereof, and without disclosing its existence. That act alone constituted an insufferable fraud and manifestly constituted a breach of the bond. 18 Cyc. page 1267. Moreover, all of her acts which resulted in despoiling respondents of their inheritance occurred during the administration of the estate, and not after the decree of distribution had been entered, and when the administratrix was acting in a private capacity, or in a capacity of trustee, merely. True, she was awarded possession and control of the property which was inventoried, and which was left for distribution, by the decree of distribution; but that decree was directly based upon extrinsic fraud practiced by her, which fraud likewise constituted a breach of the bond in question here. In Ordinary v. Connolly, 75 N. J. Eq. 521, 72 Atl. 363, 138 Am. St. Rep. 577, the law respecting the liability of a surety on an administrator’s bond is stated thus:
“The surety of an administrator is required to bear any injurious consequences arising from loss to the estate through the administrator’s default or fraud, and has no right to any favor or immunity that would not he accorded to the administrator himself.”
’Without pursuing the subject further, we are clearly of the opinion that the fraudulent and deceitful acts of the administratrix in this case were, each and all, committed
Appellant, however, also insists that the district court erred
“The majority of the cases hold that from the nature of the obligation entered into by the sureties on an executor’s or administrator’s bond, malting them privy to the proceedings against their principal, they are bound and concluded, in the absence of fraud or collusion, by a judgment against their principal, even though they were not parties to the proceeding.”
In support of the foregoing text eases are cited from 22 jurisdictions. We remark that in Nebraska, from which state a case is cited in the foregoing note, it is held that, while the judgment against the principal is always admissible in evidence against the surety, yet it is only prima facie evidence against him. In a great majority of the jurisdictions, however, it is squarely 'held that, in the absence of fraud or collusion,' the judgment against the principal is conclusive against the surety.
In the section cited from Jones on Evidence the author, in referring to administrators’ bonds, says:
“In the opinion of the author the weight of authority sustains the view that in such cases the judgment is conclusive against the surety, on the principle that he has in effect contracted to he hound thereby.”
In the note in 132 Am. St. Rep., commencing on page 764,
“A careful search of the authorities will disclose that, mainly on the principle above quoted, practically the whole of the decisions under this head are that the sureties in probate matters are bound by the decree or judgment against their principals.”
Many cases are cited in support of tbe text, which it is not necessary to refer to here.
It is not necessary to pursue this subject further. As we view it, in view that the sureties stand in privity with the administrator they necessarily must be held bound
It is, however, also contended with much force and vigor by appellant’s counsel that no judgment is permissible, indeed, that no action can successfully be maintained against a surety, so long as the judgment of discharge stands in favor of the principal and surety. That, it is contended, is the case here. In other words, counsel contend- that neither the final settlement, nor the decree of distribution, nor the discharge of the administratrix and of their client, has ever been set aside or vacated by the court. As we pointed out in our statement of facts, the district court did not in express terms vacate or set aside either the decree of distribution or the judgment or order discharging the administratrix from further liability. It must be conceded that it is generally held by the courts that where a final allowance and settlement of the accounts of the administrator have been approved, and a final decree of distribution has been entered, which is followed by a discharge of the administrator and the sureties on the bond, those orders and decrees must be vacated before an action can successfully be maintained and a judgment entered against the sureties on the bond. But in Brandt, Suretyship, etc., section 712, it is said:
‘‘The sureties of an administrator or guardian are not protected by a final settlement with, and discharge of, their principal, when*210 it is made fraudulently and without notice to the parties in interest.”
Let it be conceded, however, for the purposes of this decision, that where the final account of the administrator has been allowed and approved, and a final decree of distribution has been entered, which is followed by a discharge, it is necessary to institute and prosecute an action in which it is found and adjudicated that the allowance and settlement of the final account, the decree of distribution, and the discharge were each and all obtained through the extrinsic fraud of the administrator, and that the distributee of the estate has obtained the property by means of such fraud. "Where, however, it is also found and adjudicated that all of the proceedings during the administration of the estate, and especially the allowance and approval of the final account, the distribution of the estate, and the discharge of the administrator and the sureties, were each and all based upon
In our judgment, it would be a mere play upon words, and a positive reproach to both the law and the courts, if in the face of the findings and adjudication to which we have repeatedly referred, it were held that the orders, final decree
We remark that by what we have here said upon the proposition just discussed no adverse criticism of counsel is intended. We are well aware that in the presentation of causes circumstances and conditions often arise which are well expressed by the Oriental poet in the statement- that—
“A hair perhaps divides the false and true.”
"While counsel may be justified in arguing that, in view that the de.eree of distribution and the discharge of the ad-ministratrix have not in express terms been set aside, and therefore they are still in force and effect, yet a court would not be justified in holding that because a judgment or decree is not expressed in particular phraseology, or because a particular formula of words was not followed, therefore it is without force or effect. To do that would be to sacrifice substance for mere form, and refuse to give effect to the manifest purposes and intentions of both the court and the parties to
It is, however, further contended that all that was accomplished by the action against the administratrix, and all that was intended therein, was to charge her with
• Appellant also contends that respondents were guilty of laches, etc. In the face of the undisputed facts, we cannot conceive how such a contention can prevail
Something is also said about respondents being charged with Weyant’s wrong in assuming and in living under a false and fictitious name. No doubt the sins of the
If appellant can find any property belonging to the estate, it, in case it satisfies the judgment in favor of respondents, will be subrogated to all of their rights with re-
After a careful consideration of the somewdiat peculiar, if not unique, facts and circumstances of this ease, and the law applicable, we have been forced'to the conclusion that the judgment of the district court is right and should .prevail.
The judgment is therefore affirmed, at appellant’s costs.
Rehearing
Mr. James Ingebretsen, one of appellant’s counsel, has filed a petition for rehearing, in which two grounds are stated why a rehearing should be granted, namely:
“(1) That the court apparently failed to note the precise terms of the decree rendered by Judge Lewis in the Weyant-Morgan case; (2)' that the court omitted to consider the authorities upon the legal effect of this decree.”
In concluding a somewhat vigorous argument in support of his petition counsel says:
“In view of our blamelessness, and that the Weyants have recovered a large part of the estate, and that part of this judgment is for items such as rent for the property after distribution, and that we have parted with such security as we had and gained nothing for ourselves, and that no reserve or other precaution exists for such a liability, I had hoped and still hope that the court might kindly consider and follow the conclusion reached in the several similar cases we have cited, especially since there cannot be found in all the world a similar case in which the surety has been held.”
In this connection he also complains that we did not refer to some of the cases cited by him, and for that reason seems persuaded that we did not consider them.
In the opinion the writer explicitly stated the reason why more of the numerous cases referred to by counsel were not reviewed. In a case like this, where so many eases ¿re referred to, which have only a remote bearing upon the principal question presented, and in which the controlling facts clearly differ from the facts stated in the cited cases, it is impracticable, if not impossible, to distinguish the numerous cases and set forth the reasons at length why they are not controlling. The writer took special pains to set forth at least the controlling facts in detail in the opinion. No fault is found with the statement as made. In formulating the conclusion he again attempted to state them as explicitly as possible under the circumstances. The facts and the reasons for the conclusion reached, as well as the lawr deemed applicable
In this connection it is, however, only fair to state that we cannot agree with counsel’s contention that in the foregoing cases the law is stated that where a court adjudges that a defaulting administrator holds the property which is still in his possession, and which was wrongfully converted by him while acting as administrator, in trust for the heir or creditor of the estate, as the case may be, that, under facts and circumstances like those in the case at bar, the surety on his bond may not be held liable for the value of the property so wrongfully converted and which cannot-be recovered from the administrator. That is the crux of this case. Counsel entirely ignores or overlooks the all-potent fact ever present in this case, that the respondents at no time were brought into court. He assumes that, because the notice published by the administratrix in the name of Fuller was sufficient to bring those who transacted business with the deceased and who knew him only by that name into court, therefore it was sufficient to bring in the respondents. Not so. The respondents were never brought within the jurisdiction of the court, and hence not into the probate proceedings, and therefore any decree rendered in those proceedings, so far as they were con-crned, was a mere nullity.
The contention that we quoted the conclusion of law found in the second case, instead of the one found in the first one, is too trivial to require special comment. The conclusion of law we quoted in the opinion was inevitable, in view of the facts found in both cases and therefore, although counsel’s contention be conceded to be correct, it has no bearing upon the result.
Wie are still of the opinion that the conclusion reached is sound, and hence should prevail. The petition for a rehearing is therefore denied.
