Hanson's Estate, In re

Decision Date29 July 1954
Docket NumberNos. 9321-9321A,s. 9321-9321A
Citation128 Mont. 270,273 P.2d 103
PartiesIn re HANSON'S ESTATE (two cases). HANSON et al. v. HANSON (two cases).
CourtMontana Supreme Court

Jerry J. O'Connell, Great Falls, for appellant.

R. K. West, Jardine, Chase & Stephenson, Alex Blewett, Jr., Great Falls, for respondent.

ADAIR, Chief Justice.

On recall of the remittitur issued in these consolidated appeals the original opinion pronounced by this court on July 13, 1954, is withdrawn and the following is ordered substituted therefor as the opinion of the court herein.

Gabriel Hanson and Adina Hanson were husband and wife and residents of Cascade County, Montana.

In the year 1952 both Gabriel and Adina died intestate in Cascade County wherein each left estate.

Adina's death occurred on April 28, 1952, and that of Gabriel occurred on October 27, 1952.

No person is competent or entitled to serve as administrator or administratrix in this jurisdiction who is not a bona fide resident of the State of Montana. R.C.M.1947, Sec. 91-1405.

Decedent's son, Edwin Hanson, then 35 years of age, and decedents' daughter, May E. Hanson, then 26 years of age, were the only heirs of decedents who were bona fide residents of the State of Montana at the time and times here involved, both Edwin and May E. then being actual and bona fide residents of Cascade County, Montana.

In November 1952, being shortly after the demise of Gabriel Hanson, the daughter May E. Hanson, and the son, Edwin Hanson, separately and individually petitioned the district court of Cascade County for the issuance of letters of administration in the estates of their deceased parents and May E. Hanson filed written objections to the petitions of Edwin Hanson and to his requested appointment as administrator while Edwin Hanson filed written objections to the petitions of May E. Hanson and to her requested appointment as administratrix of said estates.

The district judge, sitting without a jury, held extensive hearings on said respective objections and petitions during the course whereof the testimony of numerous witnesses was heard.

Following such hearings the district court on January 8, 1953, made and caused to be entered and filed with the clerk of that court in the matter of each estate its decree and order adjudging: That the objections to the petitions of Edwin Hanson be denied; that the petitions of May E. Hanson seeking the issuance to her of letters of administration be dismissed; that the petitions of Edwin Hanson to administer said estates be granted and that Edwin Hanson be appointed administrator and that letters of administration issue to him in said estates upon his giving bond in the amount specified in such decrees and orders. R.C.M.1947, Sec. 91-1402.

These are consolidated appeals from the above decrees and orders so made and entered on January 8, 1953.

The decrees and orders are appealable under the express provisions of R.C.M.1947, Sec. 93-8003, subd. 3.

The statute, R.C.M.1947, Sec. 93-8004, subd. 4, requires that such appeals be taken within sixty days after the decrees and others were made, or entered or filed with the clerk.

On January 10, 1953, being the second day after the making, entering and filing of the decrees and orders, the notices of appeal and undertakings perfecting the appeals were duly served and filed.

The transcript on the consolidated appeals was not served upon counsel for the adverse parties until July 17, 1953, nor was such transcript filed in the office of the clerk of the supreme court until July 21, 1953, the latter date being 191 days after January 10, 1953, whereon the appeals herein were perfected.

An appeal is perfected by serving and filing notice of appeal and the required undertaking. See Henderson v. Drake, Cal.App., 255 P.2d 875, and In re Sullivan's Estate, 38 Ariz. 387, 300 P. 193.

Rule VI of the current published rules of the supreme court (formerly Supreme Court Rule IV) providing that the 'transcript shall be served and filed within sixty days after the appeal is perfected or the appeal will be subject to dismissal on motion of the adverse party', has the force of a statute.

In Hale v. Belgrade Co., 74 Mont. 308, 310, 240 P. 371, this court, after quoting the above court rule, said: 'The rule has the force of a statute.' Also see State ex rel. Nissler v. Donlan, 32 Mont. 256, 261, 262, 80 P. 244; State v. Kacar, 74 Mont. 269, 276, 240 P. 365; Roush v. District Court, 101 Mont. 166, 53 P.2d 96; State ex rel. Magnuson v. District Court, 125 Mont. 79, 85, 231 P.2d 941, 944.

On July 13, 1953, being prior to the service of appellants' transcript on the consolidated appeals and prior to the filing of such transcript in the supreme court, the respondent filed in this court his motion to dismiss the appeals urging, inter alia, that appellants had failed to...

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2 cases
  • Benolken v. Miracle
    • United States
    • Montana Supreme Court
    • July 30, 1954
    ... ...         FREEBOURN, Justice ...         This is an original proceeding whereby Leo Benolken, administrator of the estate of Frank A. Benolken, deceased, plaintiff and appellant in this action, by petition filed in this court, sought the stay of an order of the district ... ...
  • First Nat. Bank of Missoula v. Mercer
    • United States
    • Montana Supreme Court
    • February 2, 1955
    ...filing of appellant's transcript on appeal and the appeal must be dismissed. See R.C.M.1947, Secs. 93-5608, 93-8019, and In re Hanson's Estate, Mont., 273 P.2d 103, and the numerous authorities therein The motion to dismiss the appeal are granted and the appeal is ordered dismissed forthwit......

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