Clapp v. Houg

• Court: North Dakota Supreme Court
• Writing for the Court: MORGAN, J.
• Citation: Clapp v. Houg, 12 N. D. 600, 98 N. W. 710 (N.D. 1904)
• Decision Date: 11 February 1904

98 N.W. 710

12 N.D. 600

WILLIAM J. CLAPP, SPECIAL ADMINISTRATOR OF LOUIS HOUG v. LOUIS HOUG, OTHERWISE KNOWN AS LOUIS H. OLSON

Supreme Court of North Dakota

February 11, 1904

Appeal from District Court, Grand Forks county; Fisk, J.

Proceedings between William J. Clapp, special administrator of Louis Houg, and Louis Houg, otherwise known as Louis H. Olson. From the judgment the administrator appeals.

Affirmed.

F. H Peterson and William J. Clapp, pro se.

It is conceded that the property in the special administrator's hands should be turned over to the respondent; but appellant should be allowed his disbursements and fees. The case at bar differs from Scott v. McNeil, 154 U.S. 34, 14 S.Ct 1108, 38 L.Ed. 896, and cases therein cited. In this they were all cases of straight administration. No administrator can be appointed upon the estate of a living person. In the case at bar, no general administrator was appointed.

By paragraph 2 of section 6325, Rev. Codes 1895, no general administrator is contemplated, nor a change of form of personal property, nor its disposition or distribution. The duties of an administrator under this section are to collect and hold property until the return of the owner, or proof of his death and the appointment of an administrator. Upon the occurrence of either of these events, the property is to be turned over to the person entitled to receive it. The purpose of the statute is to preserve the property from waste depreciation and forfeiture for taxes. The effect of the provision is not the disposal of property without due process of law, but to protect it, and turn it over to the owner or his duly appointed representatives. The statute in question is a copy of that of New York and other states, and its validity has never been questioned in any state where it is in force.

Guy C H. Corliss, for respondent.

By the statute in question, the legislature assumes to vest in the county courts jurisdiction over the estates of living persons, and section 6325, Rev. Codes, so far as it assumes to give jurisdiction to appoint a special administrator of the estate of a living person, is a nullity. Administration proceedings as to the estate of parties living are a nullity. Allen v. Dundas, 3 T. R. 125; Griffith v. Frazier, 8 Cranch. 9, 3 L.Ed. 471; Burnes v. Van Loan, 29 La.Ann. 560-563; Jochumsen v. Suffolk Sav. Bank, 3 Allen 87; Moore v. Smith, 73 Am. Dec. 122; Melia v. Simmons, 45 Wis. 334; Andrews v. Avory, 14 Gratt. 229, 73 Am. Dec. 355; Withers v. Patterson, 27 Texas 495, 86 Am. Dec. 643; Morgan v. Dodge, 44 N.H. 255, 82 Am. Dec. 213; Duncan v. Stewart, 25 Ala. 408, 6 Am. Dec. 527; McPherson v. Cunliff, 11 S. & R. 422, 14 Am. Dec. 642; Stevenson v. Superior Court, 62 Cal. 60; Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276; D'Arusement v. Jones, 4 Lea. 251, 40 Am. Rep. 12; Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458; Waters v. Stickney, 12 Allen. 1-13; Day v. Floyd, 130 Mass. 488; French v. Frazier, 7 J. J. Marsh, 425-427; Peebles' App. 15 S. & R. 39-42; State v. White, 29 N.C. 116; Perry v. Railway Co., 29 Kan. 420-423; Devlin v. Commonwealth, 101 Penn. St. 273, 41 Am. Rep. 710.

Even if the statutes and constitution of North Dakota permitted administration proceedings with respect to the property of living persons, such proceedings would constitute taking property without due process of law, within the meaning of the fourteenth amendment to the Federal Constitution. The proceedings are not directed against the person as a living person, or against him at all, and he has no notice whatever thereof; the assumed proceedings, therefore, are void in so far as they attempt to affect his property rights, as to accord them such effect would be to deprive the living owner of his property without due process of law. Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458; Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897; Wheelwright v. Depeyster, 1 Johns. 471, 3 Am. Dec. 345; Rose v. Himely, 4 Cranch. 269, 2 L.Ed. 608; Carr v. Brown, 38 A. 9; Levan v. Bank, 18 Blatchf. 1 F. 641; Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896; Epping v. Robinson, 21 Fla. 36; Martin v. Robinson, 67 Tex. 368; Thomas v. People, 116 N.C. 12, 118 N.C. 33.

MORGAN, J. YOUNG, C. J., concurs. COCHRANE, J., took no part in the decision.

OPINION

MORGAN, J.

In December, 1899, one Louis Houg, thirty years of age, disappeared from Grand Forks county under circumstances which afforded reasonable grounds for the belief that he was dead, or had been secreted or otherwise unlawfully made away with. Upon his disappearance, search was made for him by the public authorities, and a reward offered by the county commissioners of said county for the production of his body and the apprehension of his murderers. All his relatives were notified of the facts relating to his disappearance. Some of the relatives resided in Minnesota, and others in Norway. Upon their request, a most careful and thorough search was again made for his body. One Swenson, a brother-in-law of Houg, consulted the states attorney, and upon his advice an application was made for the appointment of a special administrator, and for this purpose Swenson was given a power of attorney from all the relatives of said Houg to act as their representative. When Houg disappeared he left in the house, on the farm on which he worked as a foreman, personal property consisting of clothing, a trunk, carpenters tools, and one promissory note for $ 500, and some other personal property. There were no creditors. All of his personal property was worth about $ 540. The appellant, William J. Clapp, was duly appointed special administrator on April 30, 1901, under subdivision 2 of section 6325, Rev. Codes 1899, and duly qualified by giving a bond for the faithful discharge of his duties. He inventoried the property, and took the same into his possession. Said Houg was not dead, however, and informed his relatives of his whereabouts in January, 1902. He had secretly left the place on which he worked, and had gone to the state of Washington, where he worked without communicating to any of his former friends or his relatives his whereabouts, although able to do so; he being of good health during all this time, and capable of writing to them if he so desired. The expenses of the special administrator, attorneys' fees, court fees, searching for the body, and other disbursements, amounted to $ 245.84. The probate court disallowed the bill for expenses and disbursements, and the administrator appealed to the district court. The trial court found that the order of the county court appointing a special administrator of Houg's estate was null and void, for the reason that said Houg was not dead, but a living person, and denied the administrator's application for costs and necessary disbursements and expenses incurred while acting as such special administrator. The administrator appeals from the judgment entered on such finding.

It is conceded by the respondent that the administrator and all persons concerned in the appointment of an administrator acted in good faith. It is also conceded by the respondent that the disbursements, as presented for allowance, are reasonable in amount, in view of the services rendered. It is conceded by the appellant that the order appointing the special administrator was properly set aside, but he contends that the necessary expenses of such administration should be allowed and paid before he can be compelled to turn over the property. The grounds of his contention are that the statute under which the appointment was made does not contemplate a general administration of the estate; but simply taking possession of the estate of the absentee until his return, or until satisfactory proof of his death is received, and a general administrator appointed. The statute under which the appointment was made reads as follows:

"Section 6325. A special administrator shall be appointed when necessary or proper for the protection of the property or the rights of creditors or other persons interested in the estate, in either of the following cases: * * * (2) In a special proceeding in which probate or general administration is denied because the death of the person whose estate is in question is not satisfactorily proved; but he is shown to have disappeared under circumstances which afford reasonable grounds to believe either that he is dead or has been secreted, confined or otherwise unlawfully made away with."

"Section 6328. A special administrator has the same authority as a general administrator to take into his possession personal property, to secure and preserve it, to collect debts due the estate, and to take charge of the real estate and preserve it from waste or other injury and receive the rents, profits and income thereof, and for either of those purposes he may maintain any action or special proceeding. He must also make an inventory and render an account and may sell perishable property or do any other act which he may be specially required to do by direction of the court, but cannot act generally in matters pertaining to the settlement of the estate."

"Section 6331. When letters testamentary or of general administration on the estate are granted, the powers of a special administrator cease and he must forthwith deliver to the executor or administrator all the property and effects of the decedent remaining in his hands."

It will be observed that the appointment of a special administrator is to continue, under the terms of the statute, until a general administrator or an executor is appointed. The statute makes no provision for the disposition of the property by the special administrator in case of the return of the person believed to be dead. Nor is there any...