In re Davis' Estate
| Decision Date | 14 March 1903 |
| Citation | 71 P. 757,27 Mont. 490 |
| Parties | In re DAVIS' ESTATE. LEYSON et al. v. ROOT et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; E. W. Harney, Judge.
Proceedings on petition of Henry A. Root and others, for the partial distribution of the estate of Andrew J. Davis, deceased. From a decree directing such partial distribution, and from an order denying a new trial, John H. Leyson, administrator with the will annexed, and another, appeal. Modified and affirmed.
E. N Harwood and Forbis & Mattison, for appellants.
Clayberg & Gunn and Chas. R. Leonard, for respondents.
This matter is before the court upon appeals by John H. Leyson administrator with the will annexed of Andrew J. Davis, deceased, and by John E. Davis, administrator of John A. Davis, deceased, one of the legatees under the will, from an order of partial distribution and an order denying a new trial. A brief statement of the proceedings had in the district court up to the making of the order from which the appeal is taken accompanies the opinion delivered upon a motion to dismiss the appeals, made and determined during the December term of this court. In re Davis'. Estate, 27 Mont.--, 70 P. 721. The following additional statement will be necessary to a full understanding of the merits of the controversy:
The first contest over the probate of the will was instituted by Maria A. Cummings, Henry A. Root, Harriet R. Sheffield, and Henry A. Davis, the first being a sister, and the others nephews and nieces of the deceased. Pending the controversy John A. Davis, the proponent of the will, died, and John E. Davis, his son and one of the appellants, qualified as his administrator, and was substituted in the contest proceedings in his stead. In order to end the litigation a compromise was finally effected between the proponent and the contestants named. Under its terms the contest was to be withdrawn, the will was to be admitted to probate, and the contestants were to receive certain shares of the estate. On March 27, 1895, an order was made by the court in pursuance of this compromise, and in accordance with its terms the respective shares of the parties were therein ascertained and declared. Afterwards other contests arose. These were finally settled by an agreement to which all the claimants, including the first contestants and the administrator of John A. Davis, deceased, were parties. This agreement was upon application of all parties approved by the court, and on August 24, 1897, an order was entered which ascertained from the various agreements the names of the persons interested and their respective shares. The respective shares are set out in the opinion delivered on the motion to dismiss the appeals heretofore cited. Since the order of August 24, 1895, up to the application for the order now under consideration, the administrator has proceeded under the direction of the court to administer the estate upon the basis of that order. The petitioners are Henry A. Davis, Ellen S. Cornue, a nephew and niece of the testator, Sarah Maria Cummings, a sister, and Joseph A. Coram, assignee of Elizabeth Ladd and Marie Louise Dunbar, nieces of the testator. Subsequent to the filing of the petition Harriet R. Sheffield and Henry A. Davis appeared by counsel and joined in the prayer of the petition, as did also Calvin P. Davis, a nephew, Elizabeth S. Bowdoin, a sister, and Harriet Holton, a niece and the successor in interest of Harriet Wood, a sister and one of the distributees named in the order of August 24, 1897. All of the petitioners, except Coram, were parties to some one of the contests, and were found by the order of August 24, 1897, to be entitled to share in the estate; as were also Elizabeth Ladd and Marie Louise Dunbar, nieces, whose interests Coram claims. During the course of administration certain specific legacies provided for in the will and recognized in the compromise settlements have been paid. All debts due from the estate have also been paid. A large amount of money and property has been distributed from time to time to the parties named in the order of August 24, 1897, or to their assignees. Among these assignees Coram has been recognized as entitled by assignment to the shares of Elizabeth Ladd and Marie Louise Dunbar, and has received a large amount of property and money by virtue of his substitution in their stead. To all of these payments John E. Davis consented, receiving the proportion thereof belonging to the estate of his father. The petitioners made their application under section 2835 of the Code of Civil Procedure, which declares that if it appears at the hearing that the estate is but little indebted, and that the share of the party applying may be allowed to him without loss to the creditors of the estate, the court or judge must make an order requiring the executor or administrator to deliver to the applicant the net proceeds of his share, or such part thereof as is designated in the order, upon his giving the bond required, unless the bond be dispensed with.
1. The main contention of the appellants is that the order of August 24, 1897, is void so far as it undertakes to recognize the right of any of the contestants to share in the estate, being in excess of the jurisdiction of the court sitting in the exercise of its probate powers, and that, being void, it furnished no basis for the order from which the present appeal is prosecuted. They say that the will itself being admitted to probate furnished the only basis for the administration of the estate, and in undertaking to recognize the contestants as entitled to interests therein, and to ascertain and declare such interests, even though this was done by the consent of the proponent, the court has proceeded without warrant of law. This argument proceeds upon the theory that, though the district court is one of general jurisdiction, yet, when exercising its probate jurisdiction, its powers are limited by the statute from which they are derived, and unless express authority can be found in the statute for the particular order, or part of it which is called in question, it is void, citing State ex rel. Bartlett v. District Court, 18 Mont. 481, 46 P. 259; State ex rel. Shields v. District Court, 24 Mont. 1, 60 P. 489; Burns v. Smith, 21 Mont. 252, 53 P. 742, 69 Am. St. Rep. 653; and State ex rel. Kelly v. District Court, 25 Mont. 33, 63 P. 717.
Speaking generally, the soundness of this proposition is not controverted. The foregoing cases fully support it; but they are not inconsistent with another proposition of equal weight and importance: That, though the jurisdiction of the court when exercising its probate powers is, in a sense, special and limited, and depends upon the statute, yet, by implication, it also possesses all the powers incidentally necessary to an effective exercise of the powers expressly conferred. This must be the case. Otherwise the court would be unable to discharge its very important functions. Touching its powers in respect of executors and administrators, the proper function of the court is the control of the devolution of property upon the death of its owner. All questions of law and fact which necessarily arise from the inception of the proceeding down to and including the distribution of the property must necessarily fall within the purview of this power of control. Hence, having the express power to entertain a contest of a will (sections 2320-2382, Code Civ Proc.), it has power incidentally to decide any question which properly arises upon such contest,...
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