Borner v. Larson

• Decision Date: 28 September 1940
• Docket Number: No. 6672.,6672.
• Citation: 70 N.D. 313,293 N.W. 836
• Parties: BORNER et al. v. LARSON et al.
• Court: North Dakota Supreme Court

70 N.D. 313

293 N.W. 836

BORNER et al.

v.LARSON et al.

No. 6672.

Supreme Court of North Dakota.

Aug. 12, 1940.

Rehearing Denied Sept. 28, 1940.

Syllabus by the Court.

1. The right to administer the estate of a decedent is regulated entirely by statute, and letters of administration must be granted in the order and under the rules prescribed by statute.

2. Section 8657 of the Compiled Laws, prescribing the order in which letters of administration must be granted, places the children of the decedent in a class superior to that of a sister of the decedent; and therefore children have, within the limits prescribed by the statute, a right to the administration of an estate superior to the right of a sister of the decedent.

3. Under the provisions of section 4448 of the Compiled Laws, adopted children, in so far as the “legal consequences and incidents of the natural relation of parent and child” are concerned, are as much the children of the adopting parent as if they were born to him in lawful wedlock; and these consequences and incidents include the right of inheritance, when this is conferred on children. The term “children”, as used in section 8657 of the Compiled Laws, includes children by adoption as well as by birth.

4. Adoption is a relationship artificially created by statute. The proceedings do not depend upon equitable principles; therefore, unless the statutory procedure be followed and compliance had with the essential requirements thereof, there is no legal adoption.

5. The burden of establishing adoption is upon the claimant.

6. The interest in the estate of a decedent claimed by one who relies upon an agreement to adopt made by the decedent rather than upon a decree of adoption regularly made and entered in the proper court is determined by the terms of the agreement to adopt, interpreted by equitable principles when necessary.

Appeal from District Court, Morton County; H. L. Berry, Judge.

Proceeding by Augusta Borner and F. C. McCagherty, as administrator of the estate of Fritz Gappert, deceased, and others, against Abner Larson, as special guardian of Raymond Gappert and Charlotte Gappert, minors, and others, for letters of administration and the appointment of an administrator for the estate of Fritz Gappert, deceased, wherein defendants George Gappert and Selma Gappert Becker filed a cross-petition. From an adverse judgment of the district court, plaintiffs appeal.

Reversed.

NUESSLE, C. J., and BURKE, J., dissenting.

Sullivan, Fleck & Sullivan, of Mandan, Floyd B. Sperry, of Golden Valley, J. M. Hanley, Jr., of Mandan, and S. E. Halpern, of Glen Ullin, for plaintiffs and appellants.

Murray & Murray, of Bismarck, for defendants and respondents.

BURR, Judge.

According to the record, Fritz Gappert, a widower, died March 11, 1938, intestate, leaving real and personal property in Morton County.

On April 5, 1938, his sister, Augusta Borner, filed a petition for letters of administration, and nominated F. C. McCagherty as administrator. In the petition she alleged: “That the above named respondents, Selma Gappert Becker, Judson, North Dakota, age 40, and George Gappert, Blue Grass, North Dakota, age 39, claim to be the adopted children of the decedent; that your petitioner has no information relative to such adoption and denies that they are the legally adopted children and heirs at law of the decedent.”

On May 3, 1938, the respondents herein, George Gappert and Selma Gappert Becker, filed an answer to the petition, and on May 31, 1938, filed an amended answer and cross petition wherein they set forth that they are the adopted children of the decedent, “and consequently had and have the prior right of selecting an administrator”; that if Augusta Borner had any preference in the selection of an administrator, she “waived and forfeited same by not filing her petition for appointment within ten days after the death of the deceased”; and that “F. C. McCagherty is an improper person and is an incompetent person to serve as administrator in the above entitled estate, for the following reasons * * *”, setting forth several. The cross petition prays for the appointment of J. V. McCormick and Ed. Tempel, both of New Salem, or either of them, as the administrator of the estate.

The petitioner, Augusta Borner, demurred to this answer on the ground that the records do not show that they are heirs at law of the decedent, and “it does not appear from the records of the said estate that they or either of them are qualified under the statute to ask for the appointment of an administrator or to object to the appointment of an administrator;” and further specifically denied that the “objecting respondents * * * have any interest in said estate or are heirs at law of the said decedent.”

The county court granted the petition of Augusta Borner, and letters of administration were issued to F. C. McCagherty on June 1, 1938.

Three of the respondents, Julius Krecklow, Selma Gappert Becker, and George Gappert, appealed to the district court of Morton County. This court held that the said Selma Becker and George Gappert were the adopted children of the decedent and the sole heirs of the decedent, and “that neither the petitioner (Augusta Borner) nor any of the other above named respondents, do have any right, title, or interest in any of the property in the estate of the said Frederick William Gappert, deceased, and have no power or authority to nominate or select an administrator for the said estate, nor the probating of the said estate, nor the distribution of the assets of the property thereof.” Judgment was entered accordingly.

The petitioner moved the district court to set aside its judgment and to grant a new trial, based upon the ground of newly discovered evidence. The district court denied the motion, and Augusta Borner appealed, demanding a trial de novo.

In view of the law herein announced, it is not necessary to review the so-called “newly discovered evidence.”

Section 8657 of the Compiled Laws provides that

“Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:

1. The surviving husband or wife, or some competent person whom he or she may request to have appointed. [Italics ours.]

2. The children.

3. The father or mother.

4. The brothers.

5. The sisters.

6. [to 10.] * * *.”

This section also prescribes grounds of incompetency.

Where a child, brother, or sister has the right of administration and applies for the administration of the estate, the court has no discretion in the matter of appointment if the petitioner is competent, falls within a class named in the statute, and applies in time. In re Meier's Estate, 165 Cal. 456, 132 P. 764, 48 L.R.A.,N.S., 858, Ann.Cas.1914D, 121.

“Statutes which establish priorities of those preferentially entitled to administer estates are mandatory, and may not be disregarded by courts, if the person entitled to the preference is not otherwise disqualified.” In re Webb's Estate, 90 Colo. 470, 476, 10 P.2d 947, 949.

[1] The right to administer an estate is regulated entirely by statute. As said in Welsh v. Manwaring, 120 Wis. 377, 379, 98 N.W. 214: “This statute is clearly mandatory, and in itself declares its only exceptions.” See also Nichols v. Smith, 186 Ala. 587, 65 So. 30;O'Neill v. Read, 179 Iowa 1208, 162 N.W. 775;Breen v. Pangborn, 51 Mich. 29, 16 N.W. 188, 190; Bresnehan v. Bresnehan, 221 Wis. 51, 265 N.W. 93, 99.

[2] The overwhelming weight of authority is that set forth in 23 C.J. 1033 as follows: “Statutes regulating the order in which administration may be granted are mandatory and leave the courts no discretion in the matter.” A leading case on this subject is In re Campbell, 192 N.Y. 312, 85 N.E. 392, 18 L.R.A.,N.S., 606, and there it is shown specifically that “letters of administration upon the estate of an intestate must be granted to the relatives of the deceased in the order of priority named in the statute * * *.”

There is no claim made by any party that the decedent left a wife, father, mother, brothers, or a sister other than Augusta Borner. Unless, therefore, George Gappert and Selma Gappert Becker are legally the children of the deceased, then Augusta Borner was the one first entitled to administration.

[3] Section 8657, already cited, places the children in the second class of the order granting preference for administration.

[4] With reference to adopted children, section 4448, Compiled Laws, provides: “The child so adopted shall be deemed, as respects all legal consequences and incidents of the natural relation of parent and child, the child of such parent or parents by adoption the same as if he had been born to them in lawful wedlock.”

[5] That the proper interpretation to be placed on the term “children”, in the administration of an estate, includes adopted children is evident from a reading of section 7284 of the Compiled Laws. This section provides: “The term children includes children by birth and by adoption.” Consequently, if George Gappert and Selma Gappert Becker are the adopted children of the decedent, then they are “children” within the purview of section 8657 of the Compiled Laws.

Among the “legal consequences and incidents of the natural relation of parent and child” is the right of inheritance, when such is conferred by statute. See chapter 53, section 5741 et seq., of Civil Code. This right of inheritance, while it does not grow out of the relationship of parent and child, may be created and conferred in the exercise of legislative wisdom, because of the existence of that relationship.Calhoun v. Bryant et al., 28 S.D. 266, 133 N.W. 266, 271.

[6] Adoption is a relationship artificially created by statute. The proceedings are wholly statutory and do not depend upon equitable principles. See St. Vincent's Infant Asylum v. Central Wisconsin Trust Company et al., 189 Wis. 483, 206...