In re Cloward's Estate

• Decision Date: 03 September 1938
• Docket Number: 5968
• Citation: 95 Utah 453,82 P.2d 336
• Parties: In re CLOWARD'S ESTATE. In re SEARLE'S ESTATE. BEAN v. CLOWARD
• Court: Utah Supreme Court

82 P.2d 336

95 Utah 453

In re CLOWARD'S ESTATE.

In re SEARLE'S ESTATE. BEAN v. CLOWARD

No. 5968

Supreme Court of Utah

September 3, 1938

Appeal from District Court, Sixth District, Sevier County; Henry D Hayes, Judge.

Proceeding in the matter of the estates of Thomas H. Cloward and Amanda Cloward Searle, both deceased. From an order of the district court, sitting in probate, revoking letters of administration on the estate of Thomas H. Cloward, deceased, issued to G. T Bean, and from an order disallowing in toto the accounts of G. T. Bean as administrator, G. T. Bean, opposed by Charles H. Cloward, appeals.

AFFIRMED.

T. A Hunt, of Richfield, for appellant.

N. J. Bates, of Richfield, for respondent.

LARSON, Justice. HANSON and MOFFAT, JJ., concur. WOLFE, Justice, FOLLAND, Chief Justice, dissenting.

OPINION

LARSON, Justice.

This is an appeal from an order of the District Court of Sevier County, sitting in probate, revoking letters of administration on the Estate of Thomas H. Cloward, Deceased, theretofore issued to the appellant Bean, and from an order disallowing in toto his accounts as administrator. The facts as far as pertinent to the matters before us follow: Thomas H. Cloward, a resident of Sevier County, died in May, 1923, leaving surviving him a widow, Amanda, and several minor children. His estate consisted of property in said county. In September of that year letters of administration of the estate were issued to the widow, Amanda Cloward, who qualified, caused notice to creditors of the estate to present their claims to be published as required by law, and filed an inventory and appraisement of the property, showing the estate to be valued at $ 1,400. Nothing further was done in the probate proceeding, but the widow and minor children occupied the property as a home. Sometime later, Amanda Cloward married Allen Searle, by whom she had one child, a son, still living. She died in Sevier County in August, 1935, leaving surviving her as heirs at law her second husband, Allen Searle, one son by her second husband, and five children by her first husband, Thomas H. Cloward. Three of said heirs were minors. In November following her death, G. T. Bean, appellant, filed in the District Court of Sevier County his petition asking that letters of administration of the estates of Thomas H. Cloward and Amanda Cloward Searle be issued to him on said estates jointly, and that said estates be administered upon together. Bean alleged that Amanda Cloward Searle was indebted to him on a personal obligation incurred since her marriage to Mr. Searle and that he was therefore a creditor of her estate. He made no claim of any interest as an heir, creditor, or otherwise in the estate of Thomas H. Cloward. In April, 1936, an order was entered in conformity with the prayer of his petition. Bean subscribed an oath, filed a bond, and entered upon the administration of both estates, jointly.

In March, 1937, Charles H. Cloward, a son of Thomas H. Cloward and Amanda Cloward (Searle), filed a petition to revoke the letters of administration issued to appellant Bean and appoint petitioner as administrator of the estate of Thomas H. Cloward. He attacked the letters issued to Bean as void upon two grounds hereinafter set forth. Bean filed an account and joined issue on the petition to revoke his letters. Upon hearing, the court revoked the letters of administration as to the estate of Thomas H. Cloward issued to Bean as void and disallowed in full all his claims and expenditures. He appeals and presents three questions: (1) Were the estates of Thomas H. Cloward and of Amanda Cloward Searle subject to administration jointly under the provisions of Sec. 102-4-6, R. S. Utah 1933? (2) On the petition of Bean and the record as made, did the court have power and authority to appoint Bean, a stranger, as administrator of the estate of Thomas H. Cloward, deceased? (3) Was the ruling of the court disallowing the account of Bean erroneous? We shall consider them seriatim.

(1) The statute, Sec. 102-4-6, R. S. 1933, reads as follows:

"In all cases where the estate left by a deceased person had descended from another deceased person whose estate has never been probated, or where two or more deceased persons held property during their lifetime as tenants in common, and neither estate has been probated, and where the heirs are the same, the court may grant letters of administration upon such estates jointly, and they may be administered the same as if they were but one estate."

This section seems to be original in this State and such research as has been made has not revealed it in the laws of any other state, and, so far as we can find, its provisions have never been construed. A number of questions as to the meaning and interpretation of the section suggest themselves, of which we note a few: (a) Does the clause "Where the heirs are the same" apply to the case when the estate of a deceased person descended from another deceased person as well as to a case where the estates of deceased persons had been held by tenants in common during their lifetime? (b) Does the first clause of the section require that the entire estate of the second deceased person shall have descended from another deceased person? (c) Does the clause "where the heirs are the same" permit the joint administration of two estates without one or the other of the two prior conditions? (d) Does the clause "whose estate has never been probated" refer to cases where administration had not been commenced or does it include cases where administration in at least one estate has been commenced but not completed? It is not necessary in this case to answer or discuss questions listed as (a), (b) and (c), and they are suggested only for the reason that having them in mind may help to understand what may be said in regard to question (d).

It is unnecessary to discuss question (a) because in this case there is a distinct diversity of heirship. As to (b), the record discloses that the entire estate of Amanda Cloward Searle, as shown by appellant's petition, consists of an interest in the estate of Thomas H. Cloward. It is therefore unnecessary to discuss the question as to whether the statute could apply were there other property in Amanda Searle's estate. And for the same reason question (c) is not before us in this instance. This brings us to a consideration of question (d).

The statute specifies that the estate from which the other estate descends shall have "never been probated." Does that mean "administration has never commenced" or that "administration has not been completed"? We think it means the former. Coupling the administration of a new estate with one partially administered may in some cases necessitate the removal of an administrator already functioning, or it may place as administrator in one estate a person without statutory right to administer in the other estate. It often would result in a renewed giving of notice to creditors in the first estate after time for presenting claims had passed, and might call for a re-appraisal and other duplications of work and expense. We mention these as a few of many practical objections to a construction other than we have given. The law governing wills and the administration of estates of deceased persons is statutory. The court sitting in probate, derives its power from the statutes and has only such powers as are granted by statute or reasonably implied or reasonably necessary and proper to effectuate the powers which are given. Provisions of the probate code should be construed in harmony with the general purpose, intent and provisions of the code as a whole. The word "probate" or "probated" is not found in the provisions of the probate code referring to the administration of estates, commencing with Chapter 4 of Title 102, Sec. 102-4-1, to the end of the Title (Probate Code), Sec. 102-14-25, except in the one section now under discussion. On the other hand, the word "probate" or "probated" is found numerous times (at least 12) in Chapter 3 of the Title, Secs. 102-3-1 to 102-3-27, referring to Wills. This chapter is entitled "Probate of Wills," and provides in ten different sections for the probating or proving of a will, i. e., admitting it to probate; that after a will has been probated letters testamentary shall issue; that after a will has been "probated" a petition may be filed to revoke the probate of the will; and that "a copy of a will and the probate thereof, duly authenticated," shall be proof thereof in any ancillary proceedings; and that after a will has been "probated" if the executor fails to qualify, resigns, or dies, an administrator with the will annexed may be appointed. It is evident that wherever the legislature has used the term "probate" or "probated" it means the proving under a properly drawn petition of the facts necessary to vest the court with jurisdiction to proceed with the administration of the estate, the establishment of the death of the decedent, his residence, the existence of an estate and all other facts necessary and proper to call into existence and exercise the functions and powers of the court to seize upon, control and administer the estate for the protection of creditors and the devolvement of the property upon the proper heirs, legatees, devisees, and others entitled to receive or enjoy the property or the usufruct thereof. When this has been done and the estate properly brought within the grasp and control of the court to be handled according to the rules of law relative to administration, the estate has been probated, that is, brought within the functions and powers of the probate court. We see no reason for holding that the legislature in the one instance used the word "probated"...