Barrett v. Whitmore

• Decision Date: 20 May 1924
• Docket Number: 1053
• Parties: BARRETT v. WHITMORE ET AL
• Court: Wyoming Supreme Court

226 P. 452

31 Wyo. 301

BARRETT v. WHITMORE ET AL

No. 1053

Supreme Court of Wyoming

May 20, 1924

ERROR to District Court, Sweetwater County, VOLNEY J. TIDBALL Judge.

On final accounting and petition for distribution by Tom Whitmore, administrator of the estate of Mary Barrett deceased, the Court entered its decree of settlement of final account and distribution, from which Mary Barrett, contestant brings error.

Decree affirmed.

Kinkead Ellery and Henderson, Herbert Van Dam, Jr. and P. W Spaulding for plaintiff in error.

The decree of settlement is void for want of notice; administrator's supplemental account was filed without notice; it is a part of the final account; both were filed pursuant to 6974 Comp. Stats.; there is no statutory authority for the filing of a supplemental account; 5712 Comp. Stats. does not authorize it; being analagous to a supplemental pleading it was a mere continuation of the original; Harrington v. Slade, (N. Y.) 22 Barb 161-166; Pouder v. Tate, 132 Ind. 327, 30 N.E. 880; the decree of settlement on supplemental account is void, Dray v. Bloch, (Ore.) 45 P. 772; In re Ripley 167 N.Y.S. 163; 11 R. C. L. 186; 18 Cyc. 1124; 2 Church P. L. 1632; notice is jurisdictional, Dogan v. Brown, 44 Miss. 235; Picot v. Biddle, 86 Am. Dec. 134; Teynor v. Heible, (Wash.) 133 P. 1; published notice was insufficient as to time, Chapter 144, Laws 1921; Section 5703 does not apply, as four weeks publication requires twenty-eight days, Myakka v. Edwards, 68 Fla. 372, 67 So. 217; Finlayson v. Peterson, 67 N.W. 953; Bank v. Bank, 89 N.Y. 397; Dever v. Cornwell, (N. D.) 86 N.W. 227; Wilson v. Ins. Co., 65 F. 38; Wilson v. Thompson, (Minn.) 3 N.W. 699; Wade on Notice, Sec. 1105; Foster v. Vehmeyer (Cal.) 65 P. 974; 32 Cyc. 490; Bouchier v. Hammer, (Wis.) 123 N.W. 132; the decree issued at Laramie is void; the court in entering its nunc pro tunc order recognizes it's invalidity, 7 R. C. L. 992; Bell v. Jarvis, 107 N.W. 547; Brd. v. Qwinn, (Ind.) 36 N.E. 237; Raarerdondo v. Raarerdondo, 223 U.S. 376; the court erred in striking the petition of plaintiff in error for the vacation of the decree of settlement, 23 Cyc. 901, 15 R. C. L. 716; the term had expired, Lumber Co. v. Bank 22 Wyo. 302; O'Keefe v. Foster, 5 Wyo. 343; 23 Cyc. 905; the decree being void could be set aside at a subsequent term, 23 Cyc. 913; Evans v. Ry. Co., (Mont.) 149 P. 715; Godfrey v. Wright, (Wis.) 139 N.W. 193; petition to vacate was not challenged, 21 R. C. L. 596; 31 Cyc. 619; this proceeding in error is based on the record, Grover Co. v. Ditch Co., 21 Wyo. 204; Nichols v. Board, 13 Wyo. 1; Patrick v. State, 17 Wyo. 260; Palmer v. State, 24 Wyo. 218; the motion to strike admitted the facts alleged in the petition, 31 Cyc. 161; the Judge must act as a court in a hearing on a final account and for distribution, Chapter 444 C. S., the Judge was without power to act in another District, 23 Cyc. 675; Dobbs v. State (Okla.) 115 P. 370; Sawyer v. Huning, (Ariz.) 181 P. 172; Kirkby v. Ry. Co., (Colo.) 116 P. 150; matters requiring court action cannot be disposed of outside the district, 15 C. J. 817; Baff v. Waller, (Ia.) 165 N.W. 308; Eichoff v. Caldwell, (Okla.) 151 P. 860; the nunc pro tunc order was based upon the prior hearing had outside the district and is void.

N. R. Greenfield, for James Barrett, defendant in error.

Notice of settlement was published four successive weeks; it is sufficient as to form and period of publication; any possible defect therein was waived; it was complete on date of fourth publication, Calvert v. Calvert (Colo.) 24 P. 1043; Banta v. Woods, 32 Ia. 469; Davis v. Huston, 54 Neb. 28; no objection was made to the final account, hence objections to the supplemental account are without merit; the court had complete jurisdiction, Anderson v. Mathews, 8 Wyo. 311; Bissenger v. Weiss, (Wyo.) 195 P. 527; Estudillo v. Co., (Cal.) 109 P. 884; upon settlement of final account, distribution is required, 6974 C. S.; probate courts are without jurisdiction to pass upon the validity of assignments of interest as between heirs; an heir may contract about or convey title to his interest, the force of such a conveyance not being affected by a subsequent decree of distribution; Chever v. Ching Hong Poy, 82 Cal. 68, 22 P. 1080; Teller v. Such, 57 Cal. 447; Bath v. Valdez, 70 Cal. 350, 11 P. 724; Barnard v. Wilson, 74 Cal. 512, 16 P. 307; More v. More, 133 Cal. 489, 65 P. 1044; Martinovich v. Marsicano, 137 Cal. 357, 70 P. 459; probate jurisdiction is special and limited, State v. Bush, (Mont.) 153 P. 1022; the validity of assignments of interest cannot be determined on petition for distribution; the petition to vacate the decree of final settlement presented no question which the probate court had power to entertain or decide; the order made on April 24, 1920 was valid there being no contest.

T. S. Taliaferro, Jr. for Whitmore, Administrator.

The regularity of the Court's proceedings are presumed; no objection to final settlement was filed; the supplemental account directed the court's attention to process served upon the administrator, admits not offering his final account or distribution of the estate; four weekly insertions of notice was sufficient, 5703 C. S.; the relief sought by plaintiff in error was in the nature of an application for rehearing, 5870 C. S., the Judge had jurisdiction to render his decision in another county, Bissinger & Co. v. Weiss, 195 P. 527; the petition to vacate the decree of distribution was without force or effect, since it stated no legal ground for vacating or modifying the decree; 5923 C. S., Patrick C. and Joseph E. Barrett were without interest, Ditch Co. v. Peterson, 18 Wyo. 402; error predicated upon an erroneous ruling upon the admission of evidence must show a proper offer, Bank v. Henry, 22 Wyo. 192; White v. State, 22 Wyo. 141; Bank v. Bank, 24 Wyo. 433; Stanton v. Co., 25 Wyo. 141; the order made in Albany County was valid, Bissenger v. Weiss, supra, the published notice was sufficient, 5703 C. S.

Kinkead, Ellery and Henderson in reply.

The notice required is jurisdictional, 6974 C. S., its defects were not waived, Childers v. Lahann, (N. M.) 138 P. 202, the terms "reports" and "accounts" are used interchangeable in probate proceedings, Heizer v. Smith (Cal.) 71 P. 181; the hearing at Laramie was void, 5729 C. S., since it involved trial of an issue of fact; 5733 C. S. does not apply, Hanldy v. City, (Ore.) 108 P. 188; time and place are essentials of jurisdiction, Rainey v. Ridgway, (Ala.) 43 So. 843; there was no jurisdiction to act at Laramie, Williams v. Reutzel, 29 S.W. 374; Belford v. State, (Ark.) 131 S.W. 953; State v. Hall, 221 S.W. 798; irrespective of objections filed, it is the duty of the court to carefully examine a final account, 6974 C. S., In re Hite's Estate (Cal.) 101 P. 448; In re Wylie's Estate, (Cal.) 73 P. 998; and this must be done within the dates evidence was taken and hearing had; the proceeding was not ex-parte; it is unnecessary to note an exception to a final judgment in the court, which renders it, Grover Co. v. Ditch Co., 21 Wyo. 204; Nichols v. Commr's. 13 Wyo. 1-6.

KIMBALL, Justice. Potter, Ch. J., and Blume, J., concur.

OPINION

KIMBALL, Justice.

Mary Barrett died intestate December 11, 1912, survived by four children, Mary, James, Patrick C. and Joseph E. The estate was administered in Sweetwater County which, at the times herein mentioned, was in the third judicial district. In 1914, the judge of that district deeming himself disqualified to act in the estate, Judge Tidball of the second judicial district was called in to take charge of the matter. The administrator's final account and petition for distribution were filed November 7, 1919, and a notice thereof given by publication pursuant to section 6974 Wyo. C. S. 1920. Assignments of error questioning the sufficiency of this notice have been abandoned by plaintiff in error. The time as provided by the published notice and the statute aforesaid, for filing objections to said account and petition, expired December 28, 1919, and the notice recited that final settlement would be made at the court house at Green River, the county seat of Sweetwater County, at 2 o'clock p. m., December 29, 1919, or as soon thereafter as the matter might be heard.

On April 17, 1920, the account and petition for distribution being still pending and undisposed of, the administrator filed a supplemental report. Assignments of error questioning the right of the court to act upon this supplemental report without notice having been given of its filing have also been abandoned by the plaintiff in error.

On April 24, 1920, no objections having been filed, Judge Tidball, while at Laramie in the second judicial district, signed a decree of settlement of final account and of final distribution of said estate which, among other things, recited that said final account, petition for distribution and supplemental report came on regularly to be heard on said day, there being present the administrator and James Barrett, and that the facts found appeared "from the said reports and petition and the evidence adduced at said hearing." From these recitals and other things appearing in the record we think it clear that the hearing on which the decree was based was held at Laramie.

Only a few of the provisions of this decree need be noticed. The administrator's accounts were approved and settled. The four children above mentioned were decreed to be the heirs. The administrator having reported that James Barrett had assigned his interest in the estate to his sister, Mary Barrett, it was stated in the decree that there was not sufficient evidence to establish said assignment, and James Barrett's distributive share was ordered paid to him. The...