In re Dewar's Estate

• Decision Date: 17 February 1891
• Citation: 10 Mont. 426
• Parties: In re DEWAR'S ESTATE.
• Court: Montana Supreme Court

10 Mont. 426

In re DEWAR'S ESTATE.

Supreme Court of Montana.

Feb. 17, 1891.

Appeal from district court, Lewis and Clarke county; WILLIAM H. HUNT, Judge.

This is an appeal of Henry C. Yaeger, administrator of the estate of William A. Dewar, deceased, from an order of the district court, exercising probate jurisdiction, sustaining objections to the final account of the administrator, whereby the court disallowed certain fees by him claimed. There was also an appeal from the order of distribution. That appeal was dismissed by this court at this term, (ante, 1025,) and the case thus relieved of much matter contained in the record, and argued in appellant's brief. Before the admission of this commonwealth into the Union of states all probate matters were adjudicated in the probate courts of the counties. From these courts appeals laid to the district courts. Title 11. c. 3, Code Civil Proc. The territory became a state November 8, 1889. By the constitution, (article 8, § 2, and section 20, Schedule, § 4,) all probate jurisdiction was transferred to the district court, and the probate court went out of existence. The schedule further provides: “Sec. 13. All matters, cases, and proceedings pending in any probate court in the territory of Montana at the time the state shall be admitted into the Union, and all official records, files, moneys, and other property of or pertaining to such court, are hereby transferred to the district court in and for the same county, and such district court shall have full power and jurisdiction to hear, determine, and dispose of all such matters, cases, and proceedings.”“Sec. 2. All lawful orders, judgments, and decrees in civil causes, all contracts and claims, and all lawful convictions, judgments, and sentences in criminal actions, made and entered or pronounced by the courts within the territory of Montana, and in force at the time the state shall be admitted into the Union, shall continue and be and remain in full force in the state, unaffected in any respect by the change from a territorial to a state form of government, and may be enforced and executed under the laws of the state.” Henry C. Yaeger, appellant, was appointed by the probate court of Lewis and Clarke county administrator of the estate of William A. Dewar, deceased, on June 1, 1887. The appraisement and inventory of the estate, approved July 23, 1887, shows $884.83 in money, and a large amount of real estate, making a total of $36,446.83. On April 11, 1889, the administrator filed his final account and petition for distribution. The account discloses that the whole amount of money received by him from sales of real estate and other cash receipts is $11,361.25; claims paid, $8,397.28; and expenses of administration, $2,954.22. In the latter item is included $1,501.77 administrator's fees, a percentage on $36,794.33, which was the appraised value of the estate. A. J. Steele and Lewis Davis, purchasers from and assignees of the heirs of the estate, and the persons to whom final distribution was to be made, objected to the final account of the administrator, in that he had charged his fees upon $36,794.33, the appraised value of the estate, whereas he should have charged upon $11,361.25, which was the sum actually received by him upon the sales of property and other cash sources. The administrator contended that he was entitled to fees under the provisions of section 253. Prob. Prac. Act, as follows: “Sec. 253. When no compensation is provided by the will, or the executor renounces all claim thereto, he must be allowed commissions upon the amount of the whole estate accounted for by him, as follows,”—then providing percentages for different amounts. The distributes relied upon the act of September 14, 1887, (Ex. Sess. Laws 15th Assem. P. 59.) as follows: “Section 1. That section 253, second division, of the Compiled Statutes of Montana, be, and the same is hereby, amended so as to read as follows, to-wit: When no compensation is provided by the will, or the executor renounces all claims thereto, he must be allowed commission on all sums of money only actually received by him from the sale of property of the estate, or actually disbursed by him in the settlement of the estate, as follows.” Then follows percentage to be allowed, and provisions that the same shall apply to all administrators. The probate court held with the administrator, and on May 13, 1889, overruled the objections of the distributes, and allowed the final account, with the fees as claimed by the administrator. On June 8, 1889, the distributes gave notice of appeal from this order, and on June 11, 1889, filed their undertaking on appeal, as required by law. The case is next met in the district court, on April 29, 1890, after the state had come into life, and the probate court had ceased to exist, and its jurisdiction and business had been transferred to the district court. Section XX, Schedule, § 13. On that day the district court directed that the clerk indorse the papers in the case nunc pro tunc, as filed July 3, 1889. This was done on application of the distributes, it appearing that no indorsement had been made on the papers of their filing in the district court. The facts which were the grounds of this application were set forth in the affidavits of R. H. HOWEY, probate judge in May, June, and July, 1889; of John Bean, Clerk of the district court since November 8, 1889; and of John B. Clayberg, attorney for the distributees. The facts so set forth were not controverted, and were as follows: Probate Judge HOWEY, in pursuance to the appeal from his court to the district court, prepared a transcript of the docket entries on the case, and, on the 3d day of July. 1889, delivered the same, together with other papers pertaining to the said matter, to W. F. Parker, then clerk of the district court. John Bean, clerk, makes oath that since November 8, 1889, the distributes' attorneys frequently inquired for the papers in the case; that he made diligent search for the same, and could not find them until he called to his assistance W. F. Parker, his predecessor in office, when, on April 10, 1890, the papers were found filed away with other papers in the vault, where they had been placed by said Parker. J. B. Clayberg, the attorney, says that before November 8, 1889, he had inquired for said papers, and said Parker could not find them. Upon this showing that the papers in the case had been duly deposited with the clerk of the district court by the probate judge on July 3, 1889, and had been found in his office, the district court ordered that the case be docketed, and placed on the civil calendar of the court. The administrator then filed a demurrer to the jurisdiction of the district court to hear the case. The demurrer was on the ground that by the operation of the constitution upon the admission of the state the decree of the probate court became the decree of the district court, and the district court had no jurisdiction to review the order of a former judge. This demurrer was overruled. The appeal then being heard, the district court made an order reversing the probate court upon its ruling; that the administrator was entitled to $1,501.77 fees as a percentage on $36,446.83, the appraised value of the estate; and held that he was to be allowed $484.45 as a percentage on $11,361.25, money actually received by him from the sale of property. From this order the appeal is prosecuted. By the agreement of counsel the great mass of papers in the case is omitted from the record, and only sufficient is brought up in the record to exhibit the foregoing facts. The appellant administrator contends for the following propositions: (1) The district court had no jurisdiction to hear the case, and herein: First. The appeal was not in the district court until April 29, 1890, when the nunc pro tunc indorsement was placed upon the papers, and the case was ordered upon the docket of the court. Second. The foregoing proposition being correct, the judgment of the probate court became, by the transition to the state form of government, a judgment of the district court; and the district court could not sit on an appeal from its own order. (2) Even if the district court had jurisdiction to hear the case, the allowance of the administrator's fees should have been upon the basis provided in section 253, which would have been $1,501.77, and not reckoned as to be allowed by that section as amended in the act of September 14, 1887, by which the fees would amount to only $484.45. The law in force when the administration proceedings commenced must govern, and not the law passed during the proceedings, and prior to the final account and settlement.

J. W. Kinsley, for appellant.

McConnell & Clayberg, for respondent.

DE WITT, J., (after stating the facts as above.)

We will examine the appellant's position in the order above stated.

1. Appellant contends that the district court did not obtain jurisdiction of the case until April 29, 1890, when the papers were ordered to be indorsed, “Filed, July 3, 1889,” and the case ordered on to the trial docket. It is not disputed that the papers in the case were duly deposited with the clerk of the district court, July 3, 1889. Appellant insists that they were not “filed” that day, but only on April 29, 1890, and the court had no power to make the nunc pro tunc order. Appellant misapprehends the signification of the term “file.” To file papers is to deposit them with the proper custodian for keeping. The marking of them “filed” by the clerk is another matter, and is not the filing. Tregambo v. Mining Co., 57 Cal. 501, citing Engleman v. State, 2 Ind. 91;Lampson v. Falls, 6 Ind. 309; and Bishop v. Cook, 13 Barb. 326. See, also, Harrison v. Clifton, 75 Iowa, 736, 38 N. W. Rep. 406;Holman v. Chevaillier, 14 Tex. 337;Smith v. Biscailuz, 83 Cal. 358, 21 Pac. Rep. 15, and 23 Pac. Rep. 314;Howell v. Slauson, 83 Cal. 544, 23 Pac. Rep. 692;...