Agnew v. Agnew

• Decision Date: 24 March 1928
• Docket Number: 6441.
• Citation: 218 N.W. 633,52 S.D. 472
• Parties: AGNEW v. AGNEW.
• Court: South Dakota Supreme Court

218 N.W. 633

52 S.D. 472

AGNEW v. AGNEW.

No. 6441.

Supreme Court of South Dakota

March 24, 1928

Appeal from Circuit Court, Kingsbury County; Frank R. Fisher, Judge.

Proceeding by Ida M. Agnew, individually and as guardian of Helen J Agnew and others, minors, for family allowance against the estate of William J. Agnew. From a judgment in favor of the applicant and an order overruling a motion for a new trial John F. Agnew, as administrator, appeals. Reversed.

Gardner & Churchill and Null & Royhl, all of Huron, for appellant.

C. H March, of Litchfield, Minn., C. C. Fritzel, of De Smet, and C. A. Kelley and Chas. P. Warren, both of Huron, for respondent.

MISER C.

William J. Agnew died at Bancroft, Kingsbury county, S. D., January 31, 1925. On May 12, 1925, an order of the county court of said county was made appointing John F. Agnew, a brother of said deceased, as administrator of said estate. Deceased left an estate in said county of approximately $100,000. On June 30, 1925, Ida M. Agnew filed in the county court a petition for family allowance, representing therein that petitioner Ida M. Agnew, was the surviving widow of the deceased, and that she was the guardian of the three minor children of petitioner and deceased, residing with petitioner at Litchfield, Minn., and that said children and petitioner constituted the family of deceased; and petitioner, in her own behalf and as guardian of said children, asked the court to allow to them, as the family of the said deceased, the sum of $200 per month during the settlement of said estate. Said administrator, personally and as administrator, made an answer to the petition for family allowance, denying that petitioner, Ida M. Agnew, is the widow of the decedent, and denying that the minor children named in petitioner's petition are the heirs at law of decedent, and denied that said petitioner or said children are entitled to an allowance as the family of the deceased. Thereafter, trial was had in the county court, and findings made by said court wherein it was found that the petitioner, Ida M. Agnew, is not the widow of William J. Agnew, deceased, and was never married to him, and that the minor children of petitioner are not the heirs at law of said deceased. On these findings, it was decreed by the county court that the application for a family allowance be denied and dismissed.

Thereafter respondent petitioner, as an individual and as guardian of the minors aforesaid, appealed from said decision and order of the county court to the circuit court of Kingsbury county; and thereafter, on December 28, 1925, trial de novo was had in the circuit court. At the trial, certain interrogatories were submitted to the jury for an advisory verdict; and thereafter the circuit court made its findings of fact, conclusions of law, and judgment, by which judgment the order of the county court denying the petition of respondent for a family allowance was vacated and reversed, and there was awarded as a family allowance the sum of $200 per month. Thereafter appellant administrator moved for a new trial; and, from the order overruling appellant's motion for a new trial and from the judgment of the circuit court, this appeal is taken.

It is conceded that there was never a ceremonial marriage between William J. Agnew and respondent, who was known, prior to January, 1915, as Ida M. Rusch. It is conceded that, from January, 1912, until about January, 1915, the relations between deceased and respondent, both of whom resided at Bancroft, Kingsbury county, S. D., were illicit, and that, before leaving Bancroft in January, 1915, respondent had given birth to two children, and, after moving to Litchfield, she gave birth to another child, all of whom, since moving to Litchfield, have been known by the name of Agnew. The circuit court, in its findings, approved and adopted the findings of the jury that, on or about January 15, 1915, the illicit relations between respondent and William J. Agnew ceased by the parties entering into a marriage contract pursuant to which they entered into marital relations and thereafter held themselves out to the public as husband and wife; and the court concluded from findings therein made that respondent was the wife of deceased at the time of his death, and that the said minor children were the natural children and became the legitimate children of deceased by reason of such marriage, and that said surviving widow and children constitute the family of said deceased and are reasonably entitled to an allowance. Appellant set out 26 assignments of error; but respondent contends that appellant is wholly without authority to take or maintain this appeal. This contention of respondent must first be considered.

It will be observed that the answer to respondent's petition for family allowance in county court was made by John F. Agnew personally and as administrator of the estate of William J. Agnew, deceased, and consists of a denial that respondent is the widow of the decedent or that the minor children of respondent are the heirs at law of decedent. In the order denying petition for family allowance in county court, as well as in the judgment rendered in circuit court, the defendants named, in addition to the administrator, are heirs of deceased if respondent and her children are not his heirs at law. The motion to vacate and set aside the findings of fact, conclusions of law, and judgment in the circuit court was made by the administrator, and his motion was overruled; and said defendant, as such administrator, alone filed notice of appeal and perfected this appeal to this court.

In support of respondent's contention that the administrator is without authority to maintain this appeal, respondent cites numerous cases, and particularly refers to Bates v. Ryberg, 40 Cal. 463; Merrifield v. Longmire, 66 Cal. 180, 4 P. 1176; Goldtree v. Thompson, 83 Cal. 420, 23 P. 383, cited by this court in Schlegel v. Sisson, 8 S. D. 476, 66 N.W. 1087; Stilphen's Appeal, 100 Me. 146, 60 A. 888, 4 Ann. Cas. 158; Bryant v. Thompson, 128 N.Y. 426, 28 N.E. 522, 13 L. R. A. 745; Roach, Administrator, v. Coffey, 73 Cal. 281, 14 P. 840. The general purport of all the decisions so cited is expressed in Bates v. Ryberg, supra, as follows:

"The heirs and devisees or legatees *** are made parties to the proceedings for a distribution; any one of them feeling aggrieved may appeal from the final order. The executor, however, does not represent any of these parties, as against the others, and if they are satisfied with the distribution he cannot complain because some have received less than they are entitled to. He cannot litigate the claims of one set of legatees as against the others at the expense of the estate."

Appellant points out, however, that he is not here appealing from a decree of distribution. Appellant urges that, in the instant case, the allowance made by the court imperiled the rights of others than the heirs; that it imperiled the rights of creditors and claimants, the right of the administrator to his fees, the right of cash funds sufficient to carry on a large estate, heavily incumbered; that it imperiled the costs of administration, of state inheritance and federal estate taxes yet remaining unsettled because of undetermined adjudication of heirship. Appellant cites Gorham v. Gorham, 54 Ind.App. 408, 103 N.E. 16, in support of his contention that-

"It is his duty to guard and protect the estate which he represents against those who may seek to diminish it by presenting fraudulent, illegal, or unfounded claims for allowance."

See, also, In re Freud, 131 Cal. 667, 63 P. 1080, 82 Am. St. Rep. 407; Henderson Trust Co. v. Stuart, 108 Ky. 167, 55 S.W. 1082, 48 L. R. A. 49; Winchell v. Sanger, 73 Conn. 399, 47 A. 706, 66 L. R. A. 935. Granting that the duty of an administrator does not ordinarily require or permit him to appeal from a decree of distribution, it is none the less true that-

"Executors and administrators have, *** frequently been allowed to appeal from judgments which affect the estates of their decedents or themselves personally." 2 R. C. L. 54.

Inasmuch as respondents has cited numerous California cases, upon three of which this court relied in Schlegel v. Sisson, supra, the following more recent California decisions declaring the right and the duty of the administrator to appeal are of interest; In re Heydenfeldt's Estate, 117 Cal. 551, 49 P. 713; In re Snowball's Estate, 156 Cal. 235, 104 P. 446; Estate of Levy, 141 Cal. 646, 75 P. 301, 99 Am. St. Rep. 92. Of particular interest is the case of In re Heydenfeldt's Estate, because of the discussion therein of Roach v. Coffey, cited herein by respondent, and of Bates v. Ryberg, cited by respondent and cited by this court in Schlegel v. Sisson. Therein, after quoting from Bates v. Ryberg as hereinbefore quoted, Justice Temple, who wrote the opinion, said:

"I think there has been a disposition to carry the doctrine of that case beyond its legitimate scope, and further than it should be carried on principle. An administrator or an executor is a trustee of an express trust. *** He not only may, but it is his duty, to defend the estate from all unjust and illegal attacks made upon it which affect the interests of heirs, devisees, or legatees or creditors. *** I cannot see that it matters that a claim is made against the estate under the will, or by one who claims to be an heir, or a part of the family of the deceased, and as such entitled to an allowance. If it may diminish the estate to be finally distributed, or may make the fund from which the creditors are to be paid insufficient for that purpose, the administrator is interested, and, in the event of an adverse ruling, is a party aggrieved."

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