In re Barrett's Estate

• Decision Date: 03 March 1914
• Docket Number: 750
• Citation: 22 Wyo. 281,138 P. 865
• Parties: IN RE BARRETT'S ESTATE. v. BARRETT BARRETT
• Court: Wyoming Supreme Court

138 P. 865

22 Wyo. 281

IN RE BARRETT'S ESTATE.

BARRETT v. BARRETT

No. 750

Supreme Court of Wyoming

March 3, 1914

Rehearing Denied June 1, 1914, Reported at: 22 Wyo. 281 at 290.

ERROR to the District Court, Sweetwater County; HON. DAVID H CRAIG, Judge.

The material facts are stated in the opinions.

Reversed and remanded with directions.

N. R Greenfield, for plaintiff in error.

The power of the District Court to grant letters of administration is purely statutory, and the District Court in this case was without jurisdiction to appoint Mary Barrett as administratrix, for the reason that there was no petition on file for her appointment, and no opportunity was given to interested persons to file objections thereto. (Comp. Stat. 1910, Sec. 5513; Dugan v. Super. Ct., 149 Cal. 98, 84 P. 768; Matter of Page, 107 N.Y. 266, 14 N.E. 193; Shipman v. Butterfield, 47 Mich. 487, 11 N.W. 283; Leach v. Misters, 13 Wyo. 239, 79 P. 28; Moore v. Moore, 32 Neb. 509, 50 N.W. 443; Haug v. Primeau, 98 Mich. 91, 57 N.W. 25). Although the court had jurisdiction of the subject matter, and perhaps jurisdiction of both parties to the proceeding, that jurisdiction was only for the purpose of deciding the questions presented by the petitions respectively asking the appointment of James Barrett and Patrick C. Barrett. (Gille v. Emmons, 58 Kan. 118, 48 P. 569, 62 Am. St. 609; Munday v. Vail, 34 N. J. L. 418; Reynolds v. Stockton, 43 N. J. Eq. 211, 10 A. 385; Windsor v. McVeight, 93 U.S. 277).

By joining in the petition for the appointment of Patrick C. Barrett, Mary Barrett waived her statutory right to appointment. (Comp. Stat. 1910, Secs. 5518, 5519; Est. of Kirtlan, 16 Cal. 161; Bedell's Est., 97 Cal. 339, 32 P. 323; Silvar's Est., (Cal.) 46 P. 296; Sullivan's Est. 25 Wash. 430, 75 P. 793). The court was authorized to act in pursuant of statutory provisions and not otherwise. Having found both the petitioners to be competent, one or both of them should have been appointed. Patrick having taken no exception to the denial of his petition or to the appointment of Mary, but having acquiesced in such appointment, the denial of his petition must be treated as settled for all purposes of this proceeding. (Coan's Est., 132 Cal. 401, 64 P. 691; Brundage's Est., 141 Cal. 538, 75 P. 175). The petition for the appointment of Patrick raised no issue as to the competency of James. The court therefore could not entertain any question as to his competency, and any evidence directed to that point was incompetent and should have been excluded. The law presumed that he possessed the necessary statutory qualifications. (Gordon's Est., 142 Cal. 125, 75 P. 672; Est. of Heldt, 98 Cal. 553, 33 P. 549). The only issues before the court were the competency of Patrick to serve as an administrator, and the value of the estate for the purpose of fixing the amount of his bond. (Warner's Est., (Cal.) 92 P. 181). Mary Barrett is not a proper person to be appointed for the reason that she claims property in hostility to the other parties interested in the estate. (Mills v. Mills, (Ore.) 29 P. 443; Manser's Est., (Ore.) 118 P. 1024; Healy's Est., 122 Cal. 162, 66 P. 175; Moody v. Moody, 29 Ga. 519; Pickering v. Pendexter, 46 N.H. 69; Ellmaker's Est., 4 Watts, 34; Bieber's App., 11 Pa. St. 167; Stearns v. Fiske, 18 Pick. 24; Moore v. Moore, 12 N.C. 353; Drake v. Green, 10 Allen, 124; Putney v. Florcher, 148 Mass. 247, 19 N.E. 370; State v. Biddinger, 26 Mo. 483; Bridgman v. Bridgman, (W. Va.) 3 S.E. 530; 2 Woerner on Adm., (2nd Ed.) p. 525).

T. S. Taliaferro, Jr., for defendant in error.

The competency of Mary Barrett was brought into the proceeding by the evidence and the court ordered her appointment because she seemed to be the most competent. She announced that she would accept the appointment and subsequently filed her petition. The court was not without authority to make such appointment, but might properly do so in his discretion. (Comp. Stat. 1910, Secs. 5503, 5516, 5517). It was not necessary that Patrick should except to the action of the court in appointing Mary in order to protect his rights as against the application of James. (Hecht v. Carey, 13 Wyo. 154). The court having acquired jurisdiction retained it for all purposes. Mary, Patrick and Ed. Barrett each having the same right to administration as James, protested against the appointment of the latter, and at the hearing, upon notice to all parties, and all three parties with their attorneys being present in court, and the court having considered the evidence and finding Mary to be the most fitted to administer the estate, it was not improper for the court to order the issuance of letters to her. (Shiels' Est., 52 P. 808). The right of Mary Barrett had not been conclusively waived. (Rowell v. Adams, 83 S.C. 124). To claim ownership of property adverse to the estate does not render a person, otherwise competent and entitled, incompetent to serve as administrator. (Carmody's Est., 88 Cal. 616, 26 P. 273; Davis' Est., 10 Mont. 228, 25 P. 105; Bauquier's Est., 88 Cal. 312, 26 P. 176; Muersing's Est., 37 P. 521). Miss Barrett filed a petition as suggested by the court, and thereby complied with the statute. The filing of the petition of James Barrett gave the court jurisdiction to determine whether he or some other person should be appointed. (Woerner on Adm., Sec. 263; Ross on Prob. Law and Prac., Sec. 239; Hamilton's Est., 34 Cal. 464). Although Miss Barrett had not filed an application, her appointment would be valid. (Delorme v. Please, 19 Ga. 220; Atkins v. McCormick, 49 N.C. 274; Robinson v. Epping, 24 Fla. 237; Koller's Est., 105 P. 551).

BEARD, JUSTICE. SCOTT, C. J., concurs. POTTER, J., did not sit.

OPINION

BEARD, JUSTICE.

In this case it appears that Mary Barrett, a widow, residing in Sweetwater County, this State, departed this life on December 11, 1912, leaving an estate in said county, and leaving her four children, Mary Barrett, James Barrett, Patrick C. Barrett and Ed. Barrett, her heirs at law, all of whom were of full age (Mary being unmarried) and all residing in said county. That on January 2, 1913, James filed his petition in the District Court of said county, praying that he be appointed administrator of the estate of said Mary Barrett, deceased. On January 8, 1913, the other three children joined in a petition praying for the appointment of Patrick C. Barrett as such administrator. On January 15, 1913, James filed objections to the appointment of Patrick C., and the matter of the two petitions and the objections came on for hearing and were heard by the court January 20 and 21, 1913. Evidence was taken, the matters argued by counsel and submitted to the court and judgment entered on said last mentioned date wherein the court found, so far as necessary to be considered here, as follows: "That neither of the two petitioners have been found incompetent, but that upon all the evidence it appears to the court that it would be for the best interests of the estate that Mary Barrett, the oldest daughter and oldest child of said decedent, Mrs. Mary Barrett, is more competent from her education and business ability and experience to handle the affairs of said estate than either the said James Barrett or Patrick Barrett; Wherefore, it is ordered by the court that both of the petitions, that of James Barrett and that of Patrick Barrett, be denied, and that Mary Barrett be, and she is hereby, appointed administratrix of the estate of Mrs. Mary Barrett, deceased." From that judgment James Barrett appeals.

The statutory provisions applicable to the case are contained in the following sections of the Compiled Statutes, 1910. Sec. 5502. "Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, * * * * and they are, respectively entitled thereto in the following order: 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed. 2. The children." The order of others, not necessary to mention here, follows. Sec. 5503. "Where there are several persons equally entitled to administer, the court or judge or commissioner thereof in vacation may grant letters to one or more of them;" * * * * Sec. 5513. "Petitions for letters of administration must be in writing, signed by the applicant or his counsel, and filed with the clerk of the court," * * * * Sec. 5516. "Any person interested may contest the petition, by filing written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file a petition and must submit evidence in support thereof, * * * * and the court or judge must hear the two petitions together." Sec. 5517. "On the hearing the allegations and proofs of the parties must be heard, and the court or judge thereof must order the issuing of letters of administration to the party best entitled thereto." Sec. 5519. "Administration may be granted to one or more competent persons although not otherwise entitled to the same, at the written request of the person entitled, filed in court."

In this case the only issues presented by the papers on file were the competency of Patrick C and, if he was found to be competent, whether he or...