Chandler v. Probate Court for Kootenai County

• Decision Date: 13 June 1914
• Citation: 26 Idaho 173,141 P. 635
• Parties: L. W. CHANDLER and LETTIE LEE CHANDLER, Plaintiffs, v. THE PROBATE COURT FOR KOOTENAI COUNTY, State of Idaho, and Hon. BERT A. REED, Judge of the Said Court, Defendants
• Court: Idaho Supreme Court

141 P. 635

26 Idaho 173

L. W. CHANDLER and LETTIE LEE CHANDLER, Plaintiffs, v. THE PROBATE COURT FOR KOOTENAI COUNTY, State of Idaho, and Hon. BERT A. REED, Judge of the Said Court, Defendants

Supreme Court of Idaho

June 13, 1914

SETTLEMENT OF ESTATE-POWER OF PROBATE COURT TO RELIEVE FOR EXCUSABLE NEGLECT-JURISDICTION OF PROPERTY IN DIFFERENT STATES-WHERE PROPERLY ADMINISTERED-SUBSEQUENTLY DISCOVERED PROPERTY.

1. Under sec. 4229, Rev. Codes, a probate court has jurisdiction and power to relieve a party from a judgment, order or other proceeding taken against him through his mistake inadvertence, surprise or excusable neglect.

2. Application for such relief must be made within a reasonable time, not later than six months from the rendering of the decree, or the making of the order, or the occurrence of the proceeding sought to be set aside.

3. It is not the duty of an administrator of the estate of a deceased person to file with the probate court claims against the estate which have been rejected by him.

4. Under sec. 5600, Rev. Codes, it is the duty as well as the right of anyone opposed to the final settlement of an administrator's account and final distribution of the estate, in a case where the proper statutory notice is given to appear in the probate court, file his exceptions in writing, and contest the same. If an interested party neglects to do this, he is not entitled to have the order settling the account and the decree of final distribution set aside under sec. 4229, Rev. Codes.

5. If a creditor whose claim is rejected by the administrator of an estate neglects to file his exceptions to the final account of the administrator and the petition for final distribution and to contest the same, and the court, after giving the proper statutory notice, settles said account and renders a decree of final distribution, such creditor, upon later bringing his action against the estate, is not entitled to have said order and decree set aside under sec. 4229, Rev Codes, on the ground that no money has been paid into the probate court to cover his claim.

6. Where promissory notes owned by a deceased resident of a California county and secured by mortgage on real estate in an Idaho county are duly administered in probate proceedings in the California county, and proceedings are later instituted in the probate court of an Idaho county to administer certain real estate situated in said county which the deceased owned at the time of his death, and the account of the Idaho administrator is settled and a final distribution of said real estate made by the Idaho court, the fact that the promissory notes were administered in the California court and were not included in the inventory or administered in the Idaho court is not ground for the Idaho court, upon petition of a creditor, to set aside the order settling the account and the final decree of distribution.

7. Where certain property belonging to the deceased is not administered in probate proceedings, and the fact is not discovered until a final decree of distribution has been entered, the final decree should not for this reason be set aside on application of a creditor or party interested. The proper remedy is furnished by sec. 5650, Rev. Codes, which provides for the subsequent issuance of letters testamentary whenever other property of the deceased is discovered.

Application for writ of mandamus to compel the judge of the probate court of Kootenai county to set aside an order settling the final account of an administrator and a decree of final distribution. Alternative writ quashed.

Defendants' demurrer to plaintiffs' petition sustained and alternative writ quashed. Costs awarded to defendants.

Jas. H. Frazier, for Plaintiffs.

Probate courts have equity powers to set aside final settlements on the ground of fraud, mistake or accident. (Sellew's Appeal, 36 Conn. 186; Ayer v. Messer, 59 N.H. 279; Pew v. Hastings, 1 Barb. Ch. (N. Y.) 452; Smith v. Rix, 9 Vt. 240; Adams v. Adams, 21 Vt. 162.) The power is conferred by statute in the following cases: Williams v. Price, 11 Cal. 212; Estate of Cahalan, 70 Cal. 604, 12 P. 427; Dillman v. Barber, 114 Ind. 403, 16 N.E. 825; Smith v. Dutton, 16 Me. 308; Stetson v. Bass, 9 Pick. (Mass.) 27; McCollom v. Box, 8 Smedes & M. (Miss.) 619; Engle v. Crombie, 21 N.J.L. 614; Matter of Tilden, 98 N.Y. 434; Meckel's Appeal, 112 Pa. 554, 4 A. 447.

Bert A. Reed and C. H. Potts, for Defendants, file no brief.

MCCARTHY, District Judge. Ailshie, C. J., and Sullivan, J., concur.

OPINION

MCCARTHY, District Judge.

--On February 2, 1914, the defendant, as probate judge of Kootenai county, rendered a final decree of distribution and made an order of discharge of the administrator in the matter of the estate of Frederick J. Johnson, deceased. On March 24, 1914, the petitioners in this case filed a petition in said probate court for the purpose of setting aside said order and decree. The material facts set forth in said petition are as follows:

1. That Frederick J. Johnson, deceased, died on or about February 23, 1913, at Santa Cruz, California, leaving an estate within Kootenai county, Idaho; that he left a will which was admitted to probate in Kootenai county, and P. W. Johnson was appointed administrator.

2. That final decree of distribution in said estate was made by the probate court of Kootenai county on February 2, 1914 at which time the estate was closed and the administrator released.

3. That said estate was illegally and fraudulently closed in that the following property owned by the deceased was not included in the inventory nor probated in said proceedings, to wit: A note for $ 1,000 given to deceased by Leonard and Ida McCrea, secured by mortgage on real estate in Kootenai county; a note for $ 1,500 given by the same parties to deceased, secured in the same way; and an unsecured note for $ 250 given by one Herman Hansen to deceased; that the first two named notes were fraudulently included in the inventory filed in certain proceedings (presumably probate proceedings) in Santa Cruz county, state of California; that the $ 250 note was paid during the administration of the estate in Kootenai county to Edward G. Johnson, the sole heir; that said $ 250 note was not included in said probate proceedings in California or in Idaho.

4. That said deceased was at the time of his death, and still is, indebted to the petitioners in the sum of $ 2,860.53, with legal interest thereon from March 12, 1911; that said claim was duly presented to the administrator; that said administrator failed and refused to approve or reject said claim and that said claim was deemed rejected on December 25, 1913; that within three months from said date petitioners filed suit in the district court of the eighth judicial district for Kootenai county on said claim.

5. That the administrator and one Edward G. Johnson, the sole heir under said will, knew that the property of the deceased was worth more than the sum of $ 700, and that they caused and allowed to be included in the inventory of the deceased's property filed in the probate court of Kootenai county, property to the value of only $ 700, excluding the promissory notes mentioned, and caused the first two promissory notes mentioned to be included in the property of the estate in California; that they did this fraudulently for the purpose of closing the estate in Kootenai county out of due course and to prevent the petitioners from the recovery of their claim.

6. It inferentially appears from the petition that no money was reserved by the probate court to cover the petitioners' claim.

The petition filed in this court, and upon which the alternative writ of mandate was issued, contains practically the same allegations as those contained in the petition filed in the probate court and outlined above; it expressly alleges that no money was reserved by the probate court to cover the petitioners' claim; that the petitioners did not know that said estate had been probated in California and did not know of the payment or existence of the $ 250 note at the time the estate was closed, and did not receive actual notice of the intention to close said estate.

The petition then goes on to allege that the petition, which is outlined above, was filed in said probate court, that the probate judge refuses to issue any citations for the purpose of having a hearing on said petition, and refuses to reopen said estate or set aside said order and decree.

Upon this petition an alternative writ of mandate issued out of this court. To the petition, and in response to the writ, defendant filed a demurrer and answer. No evidence was taken; the only question now before this court is whether the demurrer should be overruled or sustained.

If a very narrow view were taken of this matter, it might be considered that the only question before the court is whether or not the defendant should be compelled by mandate to make an order in response to the petition filed by the petitioners. We are not disposed to take such a narrow view of the case for the following reasons: First, the question as to whether or not the petition sets up a meritorious case was argued before us on the merits, the petitioners themselves asking this court to command the said probate judge to set aside said decree and order; second, if the probate judge were ordered to make an order of record, he would undoubtedly make an order denying the petition. It seems that such order would not be appealable. (Sec. 4831, Rev. Codes.) There is no provision for an appeal from an order of the probate court made subsequent to the closing of the estate. The matter being squarely before us on the merits, it might as well be squarely passed upon at this time.

The...