Haydon v. Normandin

• Decision Date: 08 March 1919
• Docket Number: 3961.
• Parties: HAYDON v. NORMANDIN.
• Court: Montana Supreme Court

179 P. 460

55 Mont. 539

HAYDON v. NORMANDIN.

No. 3961.

Supreme Court of Montana

March 8, 1919

Appeal from District Court, Powell County; Geo. B. Winston, Judge.

Action by Agnes Haydon against Marie Normandin, as executrix of the last will and testament of Peter Normandin, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

S. P Wilson, of Deer Lodge, and H. W. Rodgers, of Anaconda, for appellant.

Scharnikow & Jordan, of Deer Lodge, and E. E. Hershey, of Missoula, for respondent.

HOLLOWAY J.

On November 9, 1894, Charles Normandin died intestate in Deer Lodge (now Powell) county, leaving personal property of the alleged value of $4,800, and leaving, as his sole heirs at law, his wife and his daughter Agnes, then en ventre sa mère. There was never any administration of the estate, but a brother, Peter Normandin, immediately on the death of Charles, took possession of the property and converted it to his own use. On July 13, 1895, the daughter Agnes was born. In May, 1915, Peter Normandin died testate, and Marie Normandin was duly appointed and qualified as executrix of his last will, and proceeded with the administration of his estate. In July, 1915, the daughter Agnes, then Agnes Haydon presented to the executrix a claim for one-half the value of the property so converted. The claim was rejected, and this action was commenced in September, 1915. From a judgment in favor of plaintiff, defendant appealed.

It is conceded by counsel for plaintiff that this action must be maintained, if at all, under and by virtue of the provisions of section 6462, Revised Codes, which section reads as follows:

"Sec. 6462. *** For the purpose of computing the time within which an action must be commenced in a court of this state, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining or injuring personal property within the same period, the letters are deemed to have been issued within five years after the death of the testator or intestate. But where an action is barred by this section any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of majority, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such disability, maintain an action to recover damages by reason thereof, in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator."

The statute was first enacted in this state as a part of the Codes, and became effective on July 1, 1895, about 7 months after the conversion took place, and a few days prior to the birth of this plaintiff.

For the purpose of defining her civil rights and remedies, plaintiff is deemed to have been living at the time of her father's death, although she was not born until 8 months thereafter. Section 552, Probate Practice Act, Comp. Stat. 1887; section 4834, Rev. Codes. She enjoyed all the rights of inheritance conferred upon any living person. 14 Cyc. 39; 14 R. C. L. 216. Since Charles Normandin died intestate, his property passed immediately upon his death to his wife and daughter, subject to the control of the probate court for the purposes of administration. Section 532, Probate Practice Act, Comp. Stat. 1887.

If section 6462 can be made applicable to a case of this character, then it must be conceded that plaintiff has brought herself within its provisions, since she labored under the disability of infancy until July, 1913.

Neither at common law nor under the statutes in force prior to July 1, 1895, could an heir at law maintain an action for the wrongful conversion of property belonging to the decedent. The right of action was in the personal representative, who was entitled to the possession of the property for the purpose of administration (sections 127, 226, and 227, Probate Practice Act, Comp. Stat. 1887), and until there was a personal representative qualified to act the statute of limitations did not commence to run (25 Cyc. 1067). But for section 6462, the plaintiff, upon reaching her majority, could have had an administrator appointed and an appropriate action prosecuted for the conversion of this property. With this statute in force, however, she was confronted with the fact, when she became of age, that, although there never was an administrator of her father's estate, the law presumes that one was appointed within five years of his death, and any action which might have been prosecuted by a personal representative was barred after 7 years from November, 1894, or in November, 1901, 12 years before she reached her majority.

It is the contention of app...