In re Astibia's Estate

• Decision Date: 20 June 1935
• Docket Number: 7407.
• Citation: 46 P.2d 712,100 Mont. 224
• Parties: In re ASTIBIA'S ESTATE. ETCHEPARE v. ASTIBIA et al.
• Court: Montana Supreme Court

46 P.2d 712

100 Mont. 224

In re ASTIBIA'S ESTATE. ETCHEPARE v. ASTIBIA et al.

No. 7407.

Supreme Court of Montana

June 20, 1935

Appeal from District Court, Valley County; John Hurly, Judge.

In the matter of the estate of Juan Astibia, deceased. Petition by Rafael Astibia and others praying for an accounting and for the suspension and removal of John Etchepare, as administrator of the estate. From an order and judgment in favor of petitioners, the administrator appeals.

Modified and affirmed.

Thomas Dignan, J. O. Weaver, and Otis A. Hallett, all of Glasgow for appellant.

C. H Roberts and James T. Shea, both of Glasgow, for respondents.

MATTHEWS Justice.

Appeal of John Etchepare, administrator, from an order and judgment disallowing certain items of credit claimed in his final account, removing him as administrator and directing him to pay over to the estate certain sums of money.

One Juan Astibia died intestate in Valley county on May 30, 1929 leaving an estate consisting solely of personal property, his sole heir being his father, Rafael Astibia, who resided in Spain. On the written request of the heir, John Etchepare was appointed administrator and duly qualified in September, 1929. Inventory and appraisement was duly made and filed, showing the following property received by the administrator:

Cash on hand .............................................................	$.17
505 Head of ewes ages 1, 2, 3 years, $10 each ........................	5,050.00
136 Head of ewes, ages 4, 5 & 6 years, $6 each .........................	810.00
5 Wethers worth $5 each .................................................	25.00
8 Bucks worth $25 each .................................................	200.00
376 Head of lambs worth $6 each ......................................	2,256.00
1 Sheep wagon and camp equipment .......................................	250.00
1 Saddle ................................................................	30.00
1 Team of horses ........................................................	50.00
1 Set of harness ........................................................	30.00
1 Watch ..................................................................	5.00
A note dated March 1, 1929, due July 1, 1929, signed by Frank
Miller ................................................................	35.00
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Total ...........................................................	$8,741.17.

Notice to creditors was given and thereafter the administrator petitioned the court for an order to sell all or part of the property. A hearing was had, and on October 17, 1929, the court ordered the sale of all of the property of the estate except the watch and note "at private sale for cash."

On December 23, 1930, the administrator filed with the court a "return of sale of property and petition for confirmation of same," wherein he showed to the court that on October 28, 1929, he made a shipment of sheep to Chicago, from which he sold, in Wisconsin, 10 ewes for $79 and 5 ewes for $50, receiving a total of $120, and sold in Chicago, through Boles Commission Company, "236 sheep as follows:

'171 Feeders, weight 9,510 lbs. at 12.85 ...............	$1,222.03
Nov. 2 6 Cull lambs weight 230 lbs. at 10.50 ...............	24.15
27 Ewes weight 2,340 lbs. at 7.00 .........................	163.80
1 Wether weight 80 lbs. at 7.00 .............................	5.60
2 Wethers weight 290 lbs. at 7.00 ..........................	17.40
10 Ewes, weight 830 lbs. at 7.00 ...........................	41.50
19 Cull ewes, weight 1570, at 3.00 .........................	47.10
	------------------
	$1,521.58

(Expenses) ....................................	294.63 $1,226.95."
"1930. June 27 Received from Art Jurgens for wool from sheep in
his possession .....................................................	$440.90
Sept. 16 Wool *** from Sheep run by Martin Risa on half
share basis *** (less expense) .......................................	208.47
Nov. 13 104 lambs*** .............................................	348.00
Nov. 24 41 lambs*** ..............................................	176.73
Dec. 18 240 ewes at 4.00 .........................................	960.00
*** wool from sheep run by Mike Sholtus on half shares ......	74.00
-----------
$3,564.05."

To this report is attached a "note" as follows: "In the fall of 1929 certain sheep were contracted to be sold to Art Jurgens, but thus far he has not been able to pay for same and thereby close the deal. In the event he is able to pay the $440.90 at item 3 above shall be credited on the purchase price of said sheep." After hearing, the sales reported were "confirmed, approved and declared valid."

The account of the sale is the only report or account of any kind made to the court by the administrator from the time of his appointment up to the fall of 1933. From July, 1930, to May, 1931, the heir in Spain wrote the administrator five letters, which he sent by registered mail asking for information concerning the condition of the estate. From his letter of May 17, 1931, it appears that he had then received a letter from the administrator inclosing $100, with the promise of $200 later in the year. The administrator had not filed with the court, or exhibited to the court, his receipts and disbursements and claims allowed as required by section 10288 of the Revised Codes of 1921; nor had he secured from the court any order for a partial distribution of the assets of the estate.

On August 3, 1933, a petition praying for an accounting and for the suspension and removal of the administrator, signed "Rafael Astibia, Petitioner, by C. H. Roberts and J. T. Shea, Attorneys for Petitioner and for the Attorney in Fact of said Petitioner," was filed. Thereupon the court issued an order to show cause why the relief prayed for should not be granted, and thereafter the administrator filed his "First and Final Account and Report *** return of sale of personal property, petition for the confirmation thereof," and for the allowance of attorney's fees, administrator's fees, and the fixing of inheritance tax. Counsel who filed the petition in response to which this accounting was filed, filed numerous objections to the account, and thereafter counsel for the administrator served upon these attorneys and filed notice of motion demanding that they show their authority to act for the heir.

All of these matters came on for hearing on February 26, 1934, and evidence, both oral and documentary, was introduced in support of the respective contentions of the parties; briefs were filed and in due time the court made findings in favor of the heir and against the administrator on certain of the contested items in the account, and entered its judgment and decree removing the administrator and appointing John M. Kline in his stead. The judgment orders that Etchepare shall, upon Kline's qualifying, deliver to the latter all moneys, goods, chattels, and papers belonging to the estate, "and specifically" the sum of $3,845.49, with interest at 6 per cent. per annum from the date of judgment. The appeal is from this judgment.

The appellant makes twenty-four specifications of error which raise the questions hereinafter considered.

At the opening of the hearing, counsel for the administrator sought to prove certain facts and customs in Spain with reference to the use of names and thereby cast doubt upon the record showing opposing counsel's authority to appear for Rafael Astibia, father of deceased. This proof was objected to on the ground that the challenge came too late in view of the record and several stipulations between counsel for continuances of the hearing. The court excluded the oral evidence offered and, on the record, overruled the motion to require proof of authority and permitted counsel to proceed with the hearing. Error is assigned on this ruling, on the assertion that the record does not show that opposing counsel's client is in fact Rafael Astibia, admittedly the father of deceased.

It is elementary that only parties interested in the estate could have any right to object to the report of the administrator. In re McLure's Estate, 68 Mont. 556, 220 P. 527. The court or judge, on motion of either party, may require the attorney of the adverse party to produce and prove the authority under which he appears, and may at any time summarily relieve a party from the consequence of the acts of an unauthorized party. Section 8994, Rev. Codes 1921. "The statute does not declare when the motion should be made. It would seem, however, that it should be made whenever during the progress of the case the party desiring to present the question comes into the possession of facts furnishing a reasonable ground for the belief that the adversary attorney is acting without authority. It would seem, also, most appropriate that the defendant, if he desires to do so, should make his motion upon his first appearance in the action. In any event his motion should be made at the earliest time he can make it. Otherwise, he may be deemed to have waived his right to move at all." Missoula Belt Line Ry. Co. v. Smith, 58 Mont. 432, 193 P. 529, 531.

Here the proceedings heard were instituted by the filing of the heirs' petition on August 3, 1933. Therein the administrator is "the defendant," and he made his "first appearance" when he filed his report in the latter part of August. He thereafter filed the amended report on which the hearing was...