Elton v. Lamb

• Decision Date: 15 March 1916
• Citation: 157 N.W. 288,33 N.D. 388
• Court: North Dakota Supreme Court

157 N.W. 288

33 N.D. 388

JAMES ELTON v. J. M. LAMB, as Administrator of the Estate of A. J. Felder, Deceased

Supreme Court of North Dakota

March 15, 1916

From an order of the District Court, Cooley, J., affirming final accounting in the Probate Court of Nelson County, plaintiffa claimant, appeals.

Reversed.

Plaintiff entitled to the costs of this litigation, with the amount of funeral expenses and interest, together with his necessary expense and disbursements, together with his taxable costs on this appeal.

Theodore B. Elton, for appellant.

It is the duty of the court to carefully scrutinize an account presented for settlement, and to reject any improper items therefrom, whether or not exceptions are interposed.Re Willey, 140 Cal. 238, 73 P. 998;Re Sanderson, 74 Cal. 20215 P. 753;Re Spanier, 120 Cal. 701, 53 P. 357;Re More, 121 Cal. 639, 54 P. 148;Re Franklin, 133 Cal. 587, 65 P. 1081.

When a credit is claimed by a personal representative and its validity is disputed, the law casts upon him the burden of supporting it, and he must not only prove the payment, but also the correctness of the demand.18 Cyc. 1181;Jenks v. Terrell,73 Ala. 238;Harwood v. Pearson,60 Ala. 410;Pearson v. Darrington,32 Ala. 227;Gaunt v. Tucker,18 Ala. 27;Wysong v Nealis,13 Ind.App. 165, 41 N.E. 388;Re Eacott, 95 Me 522, 50 A. 708;Brewster v. Demarest, 48 N.J.Eq. 559, 23 A. 271.

The requirements of the statute are peremptory that vouchers shall be filed for all claims.Comp. Laws 1913, §§ 8831,8832;Re Wicke, 74 A.D. 221, 77 N.Y.S. 558;Jenks v. Terrell,73 Ala. 238;Wright v. Wright,64 Ala. 88;Gaunt v. Tucker,18 Ala. 27;Savage v. Benham,11 Ala. 49;State ex rel. Dales v. Moore,36 Neb. 579, 54 N.W. 866;Moore v. Garneau,39 Neb. 511, 58 N.W. 179;People ex rel. Brinkerhoff v. Swigert, 107 Ill. 495.

Any item in excess of the amount stated by statute cannot be allowed except upon proper voucher, and the testimony of the administrator alone is not sufficient to support a payment or allowance made contrary to the statute.Comp. Laws 1913, § 8832.

Claims not proved and presented for allowance within the time limited are barred, and cannot be allowed.Comp. Laws 1913, §§ 8734,8736,8739-8743.

The general rule is that a personal representative cannot waive the requirements of the statute, and if he pays a claim not properly presented, he is not entitled to credit therefor.18 Cyc. 500;Nichols v. Shearon,49 Ark. 75, 4 S.W. 167;Bunnell v. Post,25 Minn. 376;Huebner v. Sesseman,38 Neb. 78, 56 N.W. 697;Johnson v. Pulver, 1 Neb.(Unof.) 290, 95 N.W. 697;Gilman v. Maxwell,79 Minn. 377, 82 N.W. 669;Miner v. Raymond,113 Mich. 28, 71 N.W. 501;Langston v. Canterbury,173 Mo. 122, 73 S.W. 151;Springfield Grocer Co. v. Walton, 95 Mo.App. 526, 69 S.W. 477.

If funds were needed to pay debts or expenses, the administrator should have petitioned, in proper form, for authority to raise such funds, either by sale or mortgage.Comp. Laws 1913, §§ 8764 et seq., 8790, 8791.

An allowance to a widow, as such, must be made by an order of the county court.Comp. Laws 1913, §§ 8581,8727;18 Cyc. 401, 402;Re Lux, 100 Cal. 606, 616, 35 P. 345, 639.

The administrator must not only show the payment and correctness of any allowance to the widow, but it must also affirmatively appear of record that the widow was the lawful wife of the deceased at the time of his death, and that the allowance was necessary.Auerbach v. Pritchett,58 Ala. 451;Veile v. Koch,27 Ill. 129;Shannon v. White,109 Mass. 146;Smith v. Howard,86 Me. 203, 41 Am. St. Rep. 537, 29 A. 1008;Richardson v. Lewis,21 Mo.App. 531;Austin's Estate, 73 Mo.App. 61;Graham v. Stull,92 Tenn. 673, 21 L. R. A. 241, 22 S.W. 738;Hascall v. Hafford,107 Tenn. 355, 89 Am. St. Rep. 952, 65 S.W. 423;Alston v. Ulman,39 Tex. 158;Mitchell v. Word,64 Ga. 208;Medley v. Dunlap,90 N.C. 527;Barber v. Ellis,68 Miss. 172, 8 So. 390;Note to Jones v. Layne,11 L. R. A.(N. S.) 361;Comp. Laws 1913, § 8727;18 Cyc. 394, and cases cited.

An advancement to be taken out of her distributive share is unauthorized because distribution can only be made upon final account.Comp. Laws 1913, § 8759;Re Willey, 140 Cal. 238, 73 P. 998;Re Rose, 80 Cal. 180, 22 P. 86;Re Miner, 46 Cal. 572;Barton's Estate, 55 Cal. 90;Re Simmons, 43 Cal. 549;Re Ricaud, 70 Cal. 71, 11 P. 471;Re Levinson, 108 Cal. 450, 41 P. 483;Re Carter, 132 Cal. 113, 64 P. 123.

The claim under the mortgage should have been duly verified and presented to the administrator as required.Comp. Laws 1913, §§ 8737,8741,8753,8757,8759;Knutsen v. Krook,111 Minn. 352, 127 N.W. 13, and cases cited, 20 Ann. Cas. 852.

The existence of liens and mortgages in no wise exempts the holders from duly presenting their claims.Comp. Laws 1913, §§ 8734,8736,8737,8739-8743,8753,8759;Re Turner, 128 Cal. 388, 60 P. 967;Code Civ. Proc. § 1569.

A canceled check given in payment of a claim for which no voucher was made is wholly insufficient as a voucher, and proves nothing.Jenks v. Terrell, 73 Ala. 238;Cases cited upon ExceptionNo. 1 herein.

A voucher filed, but not in form and failing to show for what the payment was made, and the supposed debt paid not having been presented by proper claim, is insufficient, and the same should be disallowed.Jenks v. Terrell,73 Ala. 238.

The appellant here is a creditor of a higher class than those known as common or ordinary creditors.The appellant's claim was and is of higher rank, a preferred claim.The judgment roll in connection with this claim was admissible in evidence.Comp. Laws 1913, § 8745;18 Cyc. 562;McLean v. Crow,88 Cal. 644, 26 P. 596;Porter v. Sweeney,61 Tex. 213;Williams v. Robinson,56 Tex. 347;Tucker v. Yell,25 Ark. 420;McCall v. Lee, 120 Ill. 261, 11 N.E. 522.

Whether the claim is allowed by the administrator or established by judgment after disallowance, the rank or class to which it belongs still remains a matter to be determined by the county court.McLean v. Crow,88 Cal. 644, 26 P. 596;Code Civ. Proc. § 1646;Re Willey, 138 Cal. 301, 71 P. 441;Morton v. Adams,124 Cal. 229, 71 Am. St. Rep. 53, 56 P. 1038;Re Smith, 122 Cal. 462, 55 P. 249.

The judgment roll was competent as establishing the disallowed claim, and, the record being the sole embodiment of the judicial utterances, no other oral or written matters can be set up in competition with it.The record is conclusive.2 Wigmore, Ev. § 1346; 2 Black, Judgm.§§ 625,626;7 Enc. Ev. 795, 797, 798, 852;10 Enc. Ev. 757.

The complaint is properly admissible in evidence as part of the record, because no answer thereto was ever made, and therefore its averments were and must be taken as true.23 Cyc. 752, and cases cited;Last Chance Min. Co. v. Tyler Min. Co.157 U.S. 683, 39 L.Ed. 859, 15 S.Ct. 733, 18 Mor. Min. Rep. 205;Re More, 121 Cal. 639, 54 P. 148;23 Cyc. 1055, and cases cited;Martinson v. Marzolf,14 N.D. 308, 103 N.W. 937;Borden v. McNamara,20 N.D. 237, 127 N.W. 104, Ann. Cas. 1912C, 841;Mach v. Blanchard,15 S.D. 432, 58 L. R. A. 811, 91 Am. St. Rep. 698, 90 N.W. 1042;Re Willey, 138 Cal. 301, 71 P. 441;Morton v. Adams, 124 Cal. 229, 71 Am. St. Rep. 53, 56 P. 1038.

The provisions of the local statute fixing the order of payment are mandatory; they cannot be changed or disregarded by the court or by the representative.18 Cyc. 546;Tompkins v. Weeks,26 Cal. 51;Lawrence v. Leake & W. Orphan House, 2 Denio, 577, 11 Paige, 80;Bloodgood v. Bruen,8 N.Y. 362;Voorhis v. Childs,17 N.Y. 357;Colton v. Field,131 Ill. 398, 22 N.E. 545;Dullard v. Hardy,47 Mo. 403;Schoeneich v. Reed,8 Mo.App. 356;Jenkins v. Jenkins, 63 Ind. 120;18 Cyc. 546.

Without an order of the court, the administrator pays debts or claims at his peril.Re Fernandez, 119 Cal. 579, 51 P. 851.

Allowance to the family is expressly made subject and subsequent to a claim for funeral expenses.In fact, the authorities hold that such a claim need not be presented to the administrator for allowance.Comp. Laws 1913, §§ 8725,8728,8738;Potter v. Lewin,123 Cal. 146, 55 P. 783;Dampier v. St. Paul Trust Co.46 Minn. 526, 49 N.W. 286;Benedict v. Ferguson,15 A.D. 96, 44 N.Y.S. 307;Sawyer v. Hebard,58 Vt. 375, 3 A. 529, 18 Cyc. 455;3 Sutherland, Code Pl. § 3331.

The administrator or county judge cannot exercise an arbitrary discretion in passing upon affidavits accompanying claims of creditors presented for allowance.Cullerton v. Mead,22 Cal. 96;Pacific States Sav. Loan & Bldg. Co. v. Fox,25 Nev. 229, 59 P. 4;Melton v. Martin, 28 Mont. 150, 72 P. 414.

Frich & Kelly, for respondent.

An order allowing a final account, in county court, not being a final adjudication, is not appealable.18 Cyc. 1207, and cases cited in note 36;2 Woerner, Am. Law of Administration, § 545;19 Enc.Pl. & Pr. title, Settlement of Decedent's Estates, 1077, and cases cited.

The evidence of the administrator with reference to the remaining payments to which reference is made by appellant was received without objection; it shows that the items were actually paid by the administrator; that the expenditures were necessary to carry on the affairs of the estate, and is not contradicted.Therefore, the items are sufficiently vouched.Re Hilliard, 83 Cal. 423, 23 P. 393;John v. Sharp,148 Ala. 665, 41 So. 635;Terrell v. Rowland,86 Ky. 67, 4 S.W. 825;Re Pollock, 3 Redf. 100;Re Nichols, 4 Redf. 288.

The law recognizes the right of the administrator to receive credit for debts of the deceased justly due when paid, without a formal claim, presented and allowed.Re Wonn, 80 Iowa 750, 45 N.W. 1063;Re Pennock, 122 Iowa 622, 98 N.W. 480;Lockhart v. White,18 Tex. 107;Roberts v Rogers,28 Miss. 154, 61 Am. Dec. 542;Judson...