Dutcher v. Culver

• Decision Date: 21 March 1877
• Citation: 23 Minn. 415
• Parties: ELIZA A. DUTCHER, Administratrix, <I>vs.</I> GEORGE CULVER and others.
• Court: Minnesota Supreme Court

23 Minn. 415

ELIZA A. DUTCHER, Administratrix, vs. GEORGE CULVER and others.

Supreme Court of Minnesota.

March 21, 1877.

Appeal by R. J. Marvin from an order of the district court for Ramsey county, Simons, J., presiding, denying his application to be substituted, as administrator, as plaintiff in this action.

Gilman, Clough & Lane and T. R. Huddleston, for appellant.

Horn & Billson and Harvey Officer, for respondents.

BERRY, J.

The above-entitled action was originally brought in the district court for Ramsey county, by the plaintiff, as administratrix of the estate of Gilbert Dutcher, deceased. After the commencement of this action, and on June 14, 1876, the probate court of Ramsey county entered an order removing plaintiff from administration. On June 26th, following, the plaintiff appealed to the district court from the order of removal, giving the statutory recognizance in the penal sum of $250. While the appeal was pending in the district court, the probate court, on August 15, 1876, entered an order appointing R. J. Marvin administrator de bonis non. On August 17th plaintiff appealed to the district court from this order, giving a recognizance as before. On August 18th Marvin qualified, and letters of administration were issued to him. On August 23d, while both appeals were pending and undetermined, Marvin applied to the district court to be substituted in this action as plaintiff, in his capacity as administrator, in the place of Eliza A. Dutcher. Upon a hearing, the district court being of opinion that, by the appeals, all proceedings in respect to the removal of the plaintiff and the appointment of Marvin were superseded, and that therefore Marvin was not entitled to act as administrator, the application to substitute was denied. From the order of denial Marvin appeals to this court.

The question presented is whether an appeal to the district court, from an order of the probate court, stays the operation of such order while the appeal is pending.

The statute provides that "an appeal may be taken to the district court from a judgment or order in a probate court * * * upon questions of fact or law, or both, by the service of a notice on the adverse party, stating the appeal from the order or judgment, or some specified part thereof, and by filing a copy of the said notice in the office of the judge of probate, together with a recognizance entered into by the party appealing, with one or more sureties to be approved by the judge of probate, conditioned that the party will prosecute his appeal with due diligence to a final determination, and pay all costs adjudged against him in the district court." Gen. St. c. 49, §§ 14, 16. The determination of the question before us depends upon the scope and meaning of the word "appeal," as here employed. Our statute nowhere in terms defines it. Save so far as its meaning is controlled or influenced by statute, there can be no doubt that it is properly defined as a proceeding by which a case is taken from an inferior to a superior tribunal, the determination of the former thereby vacated or suspended, and the case brought before the latter to be tried and determined de novo. Powell on Appellate Proceedings, c. 9, passim. Is this its ordinary definition so controlled or influenced by statute in this state that a determination of a probate court is not vacated or suspended by an appeal therefrom to a district court? As showing that it is used in its ordinary sense, the plaintiff's counsel cites Gen. St. c. 51, § 5, which reads as follows: "When there is a delay in granting letters testamentary or of administration, occasioned by an appeal from the allowance or disallowance of a will, or from any other cause, the judge of probate may appoint an administrator to act in collecting and taking charge of the estate of the deceased until the question on the allowance of the will, or such other question as occasions the delay, is terminated, and an executor or administrator is thereupon appointed; and no appeal shall be allowed from the appointment of such special administrator."

The plaintiff's counsel contend that the language of this section is irreconcilable with the idea that an appeal does not operate to vacate or suspend the determination appealed from. "If," they ask, "the appeal did not suspend the action of the probate court, why should there be any delay in appointing the administrator? Where was the need of the special administrator, during the appeal, if the court go on and appoint the general administrator, notwithstanding the appeal? Why should it be necessary to forbid an appeal from the appointment of a special administrator, if the appeal would not have prevented him from proceeding?" We think that these questions can be fairly answered without an admission of the counsel's position. It is not necessary to attribute the delay in appointing the administrator to a suspension of the action of the probate court by an appeal. There is no reason why a judge of probate may not delay an appointment in exercising a sound discretion upon the circumstances of a particular case — for instance, in the case of a will contested upon the ground that it is forged or invalid. On some other accounts very grave practical reasons may exist why (notwithstanding his allowance of the will) a judge of probate should hesitate to commission the person named as executor, or an administrator with the will annexed, until the appeal from his allowance is determined. The case may involve large interests; it may be one as to which the judge entertains great doubt, notwithstanding his determination — a case involving a great deal of feeling on the part of opposing parties, and a case in which, as respects the speedy and unembarrassed settlement of an estate, the question as to whether one person or another shall administer is of considerable practical importance. Like considerations are applicable to the granting of letters of administration upon an intestate estate. Instances of delay in granting letters, "from any other cause" than appeal from the...