Farnsworth v. Hatch

• Decision Date: 21 August 1915
• Docket Number: 2786
• Citation: 151 P. 537,47 Utah 62
• Court: Utah Supreme Court
• Parties: FARNSWORTH et al. v. HATCH

151 P. 537

47 Utah 62

FARNSWORTH et al. v. HATCH

No. 2786

Supreme Court of Utah

August 21, 1915

Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.

Application by Lacy H. Farnsworth and Emma J. Turner for the removal of Ruth Hatch as executrix of the last will and testament of Abram Hatch, deceased.

Judgment for defendant. Plaintiffs appeal.

REVERSED, and cause remanded, with directions.

E. A Walton and Howat, Macmillan & Nebeker for appellants.

Rawlins Ray & Rawlins for respondent.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

Lacy H. Farnsworth and Emma J. Turner, as heirs at law and as legatees and devisees of Abram Hatch, deceased, hereinafter styled appellants, made application to the district court of Wasatch county, while acting as a probate court, to remove Ruth Hatch, hereinafter called respondent, as executrix of the last will and testament of said Abram Hatch, deceased Said Ruth Hatch was nominated as executrix in the last will of said deceased jointly with one Abram C. Hatch, and thereafter both were duly appointed joint executrix and executor by said court, and both qualified and have ever since acted as such. We remark that respondent was the second wife of said Abram Hatch, deceased; he having been married before he married her. By his first wife he had five children, the two appellants and Abram C. Hatch being three of the five, and by his second wife he also had five children, who are still living. It is claimed that the deceased in his last will appointed Abram C. Hatch as executor to represent the children of the first wife, and that he appointed the respondent as executrix, so that she might represent herself and her five children. Considerable feeling and diversity of opinion has developed between the respondent and Abram C. Hatch while acting as executor and executrix of the will aforesaid.

The application for removal is based on Comp. Laws 1907, section 3837, which, so far as material, reads as follows:

"The court may at any time suspend any administrator or executor; and may, upon citation, revoke the letters of any * * * executor or administrator for neglect, mismanagement, waste, embezzlement, incompetency, incapacity, or because of conviction of an infamous crime, or for any other reason deemed sufficient by the court."

The appellants, in substance, charged respondent with incompetency, mismanagement, want of integrity, which, it was alleged, had been judicially established, and that she claimed large amounts of property which belonged to the estate, and which she had refused, and still refuses, to inventory, and that her personal interests were in conflict with the interests of said estate to such an extent as to incapacitate her to act as executrix, etc. The respondent appeared and answered the application. She denied the charges, and set up various matters in defense which it is not necessary to state in detail. The evidence produced at the hearing for and against the application is so voluminous and of such a nature that we shall, during the course of this opinion, merely refer to such parts thereof as are deemed material to an understanding of the points decided.

The court made findings of fact and conclusions of law in favor of respondent, and entered a judgment or order dismissing the application, and the appellants present the record to this court, and ask us to reverse the order or judgment aforesaid. Appellants' counsel, among other things, contend that the findings are not sustained by the evidence, that they are contrary thereto, and that the order or judgment is contrary to law. Respondent's counsel, however, suggests that this court is without jurisdiction, for the reason that no appeal lies from an order or judgment dismissing the application and refusing to remove the respondent as executrix. Our Constitution (article 8, section 9), after providing for appeals generally, further provides:

"Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, * * * as shall be provided by law."

The statute (Comp. Laws 1907, section 3300) is practically a transcript of the constitutional provision just referred to. We are of the opinion that the order or judgment appealed from in this case is a final order within the rule laid down by the court in Honerine, etc., Co. v. Tallerday, etc., Co., 30 Utah 449, 85 P. 626, and Winnovich v. Emery, 33 Utah 345, 93 P. 988. Such must also have been the conclusion reached by this court in deciding the appeal in re Owens' Estate, 30 Utah 351, 85 P. 277, where an appeal was taken from an order refusing to revoke the letters of administration which had been granted to one who had been prematurely appointed by the probate court of Salt Lake County. The application was there made under another provision of section 3837, supra, and this court reversed the order of the lower court, and in effect directed that court to remove the appointee. While the question of jurisdiction was not directly discussed in that case, yet it was necessarily involved, and that decision is therefore decisive of the question here.

The first assignment argued by appellants' counsel is that the lower court erred in refusing appellants a jury trial. We cannot yield assent to that contention. The power, as well as the discretion, to remove an executor, is conferred upon the court, and not upon a jury. The power may not be exercised arbitrarily, nor should it be arbitrarily withheld. Much must be left to the sound legal discretion of the court. This seems to be the universal rule. Schouler's Ex'rs and Adm'rs (2d Ed.) section 154; 1 Woerner's Am. L. of Adminis. (2d Ed.) section 269. If a party filing an application for removal is entitled to a jury trial, then the accused administrator or executor must likewise be entitled to the same, and hence a jury might, by their verdict, retain in office one who, for various reasons, may be thoroughly unfitted to discharge the trust, or they may remove one who is manifestly qualified to act. Moreover, the inquiry on such an application is, in its nature, equitable rather than legal. The court committed no error in refusing appellants a jury trial.

One of the principal errors assigned relates to the exclusion of evidence which was offered at the hearing in support of the application, and which, counsel contend, judicially determined the unfitness of respondent to longer serve as executrix. The question presented for review upon the assignment just referred to arose as follows: Some time in 1912, after the appointment of respondent as executrix, she was requested to produce and to inventory as part of the estate of Abram Hatch, deceased, a promissory note for $ 2,000. She refused to inventory said note as part of said estate, claiming that it belonged to her. An action was commenced by Abram C. Hatch, as executor of the last will of said Abram C. Hatch, deceased, against the respondent, as executrix, and also in her individual capacity, for an accounting and for possession of said note, and, if possession could not be had, then for the face value thereof, with interest. While that action apparently was to obtain possession of the note, yet the facts with regard to the ownership thereof and the fact that respondent wrongfully claimed ownership of said note were fully set up. Among other things it was alleged that the respondent had altered said note by changing the name of the payee, "Mr. Abram Hatch," to read "Mrs. Abram Hatch," by adding the letter "s" to the word "Mr.," and had thus made the note payable to herself. It was also alleged that by reason of the failing health and loss of memory and general mental incompetency of the deceased during his later years respondent had obtained management and control of the deceased's business affairs, and had obtained possession and control of all of the private papers, including the note aforesaid, and that she "wrongfully retained the possession of said promissory note, and wrongfully and unlawfully claims to be the owner thereof." The respondent denied all the material allegations of the complaint in that action. A trial to a jury resulted in a verdict in favor of the plaintiff in said action, upon which the court entered judgment against the respondent here, requiring her to deliver up said note to the estate, which she did.

The respondent, in her answer to the application for removal while denying the legal effect claimed by appellants for the verdict of the jury and judgment in that case, nevertheless admits the verdict and judgment and her acquiescence therein. For the purpose of proving the legal effect of that verdict and judgment, and to prove that the respondent had, by the verdict of the jury in that case, been found guilty of misconduct with respect to said note, the appellants offered in evidence the judgment roll, including the pleadings, in that case, and in connection therewith offered the requests to charge and also the charge given by the court to the jury. The foregoing evidence was offered, in connection with other evidence, for the purpose of showing the matters in issue and the questions that were presented to the jury for determination. The testimony of the respondent given in her own behalf, and that of Abram C. Hatch and others which had been adduced on behalf of the estate, was also offered, for the purpose of showing what was in fact litigated and determined in that case. Respondent's counsel objected to all of said offers "on the ground that it is immaterial, irrelevant, and incompetent." The court excluded all of the proffered evidence, all of which, being in the form of documentary evidence, that is, in typewriting, it was, by agreement of counsel, either...