In re Dougherty's Estate
| Decision Date | 02 July 1906 |
| Citation | 86 P. 38,34 Mont. 336 |
| Parties | In re DOUGHERTY'S ESTATE. v. DOUGHERTY et al. DOUGHERTY et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clarke County; J. M. Clements Judge.
Judicial accounting by Annie Dougherty, as administratrix of the estate of Anthony Dougherty, deceased, to which Patrick Dougherty and others filed objections. From an order settling the accounts, the administratrix appeals, both in her representative and individual capacity. Modified and affirmed.
Lincoln Working, T. J. Walsh, and E. B. Hoffman, for appellants.
John B Clayberg, M. S. Gunn, and C. A. Spaulding, for respondents.
These appeals are from an order of the district court of Lewis and Clarke county settling and allowing an account of Annie Dougherty, administratrix of the estate of Anthony Dougherty deceased. The death of the decedent occurred some time prior to January 7, 1902. On that date the court regularly made and entered an order allowing Annie Dougherty, the widow, $125 per month for her maintenance during the progress of administration. The estate consisted of real and personal property. On February 14th of that year, a homestead was set apart for her. On February 6, 1904, the administratrix filed her exhibit and account. Upon a hearing thereon the account was settled without objection from any one. It appeared therefrom that there had come into the hands of the administratrix $2,599.18 in cash; that all claims against the estate had been paid; that a balance of $2,085.61, remaining in her hands after the payment of claims, had been retained by her in payment of her allowance, and that there was then due her an unpaid balance on that account of $1,039.29. On March 22, 1905, she filed another account. From this it appeared, among other things, that the amount found in February, 1904, to be due her on her allowance had not been paid, and that there was then due her in this behalf a balance of $2,754.19. The property then remaining in her hands consisted of real estate, yielding a small income, of an appraised value of $2,290. To the allowance of this account various objections were interposed by certain of the next of kin of the deceased who are entitled to share in the estate.
The principal matter in controversy was the validity of the order making the family allowance. It was objected that the order was void because it was made without notice, and hence that the administratrix was not entitled to credit for the amount retained by her for her allowance, nor for the amount due and unpaid as appeared from the account of February 6, 1904, nor for any amount subsequent to that date. It was also further objected that, though the order be conceded to be valid, yet it was apparent from the record of the proceedings and the condition of the estate, that the administratrix should have closed up the administration within one year from the date of her appointment, whereas she had purposely delayed closing it up in order that she might consume the whole of the estate for the payment of her allowance, and thus exclude the next of kin from any share therein. For this reason it was argued that she should be charged with all amounts in excess of $1,500, retained in payment of her allowance or still claimed to be due during the one year. The court struck out all credits on account of the allowance, except the item of $2,085.61, which appeared from the account of February 6, 1904, to have been already paid; ordered that no further allowance be made, and directed the administratrix to make final settlement at once. Thereupon Annie Dougherty appealed, both an administratrix, and in her own right as widow. It is alleged that the court erred in striking out the item of $1,039.29 found to be due in the account of February, 1904, and disallowing further credit in that behalf after that date.
1. It is apparent that appellant in her capacity as administratrix was not aggrieved by the order. It is a matter of no moment to her what disposition is made of the property, so long as it is preserved for the estate, and reaches the hands of those who are entitled to it. It is only in her individual right that she may be heard to complain, for the order affects her only in this respect. Her appeal in her representative capacity is, therefore, dismissed.
2. The record before us consists of the account, the written objections thereto, and the findings and order, certified by the clerk as the judgment roll, with a certified copy of the notice of appeal. The contention is made by the respondents that the order is not a final judgment, and hence that the proper record on appeal therefrom is not a judgment roll, because there can be no such thing in probate proceedings, but an exemplification of all the papers used on the hearing in the court below in the form of a bill of exceptions; and since the record of the case is not before us in this form, the appeal may not be considered on its merits. In Re Estate of Tuohy, 23 Mont. 305, 58 P. 722, and in Re Kelly's Estate, 31 Mont. 356, 78 P. 579, 79 P. 244, this court held that statutory determinations in probate proceedings termed "orders or judgments," are not final judgments so that appeals will lie from them as such under the provisions of the Code (section 1722, subd. 1, amended by Sess. Laws, 1899, p. 146). In these cases the court considered only the question of the appealable character of such orders, and concluded that appeals from them are authorized, if at all, under subdivision 3 of the section mentioned. Nothing is said in either of them, directly or indirectly, touching the form or contents of the record required to present appeals in this court. The purpose of a bill of exceptions is to incorporate in authentic form as a part of the record, proceedings on the trial, including rulings of the trial judge alleged to be erroneous, the objections and exceptions taken thereto, with the grounds thereof, which would not otherwise appear therein. Otherwise the record proper consists only of the pleadings, process, the instructions given and refused, the verdict or the findings, and judgment. If defendant had appeared in the case the process may be omitted. Section 1737 of the Code of Civil Procedure provides: "On appeal from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of 'papers' used on the hearing in the court below."
The question how the record shall be authenticated on appeals from orders other than orders granting or refusing new trials, was directly considered and settled in Cornish v Floyd-Jones, 26 Mont. 154, 66 P. 838; Rumney Land & Cattle Co. v. Detroit & Mont. C. Co., 19 Mont. 557, 49 P. 395; and Emerson v. McNair, 28 Mont. 578, 73 P. 121. The result of these cases is the rule that the papers used on the hearing in the trial court must be made a part of the record by a bill of exceptions, settled in the usual way, else they are not properly in the record, and cannot be considered. Of course, the record on appeals from orders granting or refusing new trials is made up under other provisions (Code Civ. Proc. §§ 1736, 1738), and what is here said has no reference to them. Section 2921 of the Code of Civil Procedure, relating to new trials and appeals in probate proceedings, provides: "The provisions of part 2 of this Code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title." Since we find no specific provision in this part of the Code as to the contents of the record in such cases, or the mode of authenticating it, the provisions regulating bills of exceptions, statements, and appeals in ordinary actions must be applied, and so far as may be, though the proceedings are conducted in a different way and the records differ in their makeup, the analogies between them must govern. While there is no such thing, technically, as a judgment roll...
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