In re Estate

• Decision Date: 04 March 1895
• Parties: In re HIGGINS' ESTATE.
• Court: Montana Supreme Court

15 Mont. 474

In re HIGGINS' ESTATE.

Supreme Court of Montana.

March 4, 1895.

Appeal from district court, Missoula county; F. H. Woody and Theo Brantly, Judges.

This is an appeal from an order of the district court refusing to quash a former order, in compliance with the statute, directing Julia P. Higgins and others, qualified as executors and trustees, to file in said court a complete inventory and appraisement of the estate of their testator. Affirmed.

Appeal by Julia P. Higgins, Francis G. Higgins, and George C. Higgins, executors and trustees of the last will and testament of Christopher P. Higgins, deceased, from an order made by the district court overruling the motion of said executors and trustees to set aside an order made requiring said executors and trustees to file in said court a complete inventory and appraisement of the estate of the said Christopher P. Higgins, deceased, situated in the state of Montana, which has come into their hands as such executors. The order referred to recites that Francis G., George C., and Julia P. Higgins were on November 20, 1889, duly appointed executors of the last will and testament of Christopher P. Higgins, deceased, and all duly qualified as such executors on the 20th of November, 1889; that more than three years have elapsed since their qualification as such executors; and that no inventory and appraisement have been filed. The court therefore ordered that they prepare and file in said court, on or before July 8, 1893, a full inventory and appraisement of the estate of the deceased, and which had come into their hands as such executors, as required by law. The motion to set aside the order of the court was based upon the grounds that the court had no jurisdiction in the matter of said estate, coming under the probate laws of the state of Montana, to make any other order with reference to said estate, but that the jurisdiction to make any orders is vested by law in a court of equity; that a court of equity alone had jurisdiction with reference to said estate since the order probating the will; that the district court, as a court of probate, has no jurisdiction to make any order relating to said estate, or to direct the said Julia, Francis, and George Higgins to do any act in said estate. The motion was based upon the will, and affidavits of Francis G., George C., and Julia P. Higgins.

The will and testament is as follows: “First. I give, devise, and bequeath to my executors, hereinafter named, all and singular my property, real and personal, wheresoever situated, and all moneys belonging to me, of which I may die possessed, in trust, nevertheless, and to and for the following uses and purposes, namely: Second. I direct that my said executors shall continue to carry on the banking business in which I am now engaged under the name of C. P. Higgins Western Bank, and to that end that they shall, so soon after my death as shall be expedient, proceed to incorporate said bank, with a capital stock of one hundred thousand dollars, under the laws of the United States or the laws of Montana; and, when so incorporated, my said executors shall transfer to said bank all of the moneys, property, and assets now used in the business of said bank, and so much of any other funds that may come into the hands of my executors as shall be necessary to make up the amount of the capital stock of said bank; and that, upon the incorporation of said bank, the capital stock of the same shall be equally divided among my heirs, hereinafter named. Third. I further direct my said executors, hereinafter named, to proceed to construct the block of buildings now in the course of construction by me, according to the original plan, designs, and contracts, under which the same is now being constructed. Fourth. In order to carry out the purposes and directions above mentioned, I hereby authorize, empower, and direct my said executors to sell, convey, and dispose of any of my estate, whether real or personal, which may come into their hands. Fifth. I further authorize, empower, request, and direct my said executors to sell and convey any of the estate and property belonging to me which may come into their hands, wheresoever situate, in such manner as may in their judgment may be most for the interest of my estate, and to convert the same into cash; and I direct my said executors to invest such proceeds of sale, with all other moneys which may come into their hands, unless herein otherwise provided, and keep the same invested in safe manner as in their judgment may seem best for the joint and equal benefit of all my heirs hereinafter named; and, in order to carry out the provisions of this instrument, I hereby authorize and empower my executors, hereinafter named, to sign, seal, execute, acknowledge, and deliver, in due form of law, all and every such deed or deeds, conveyances and assurances in law, whatsoever, as shall be necessary for granting, conveying, and assuring the same, or any part or parcel of land or real estate sold and conveyed by the authority herein granted. Sixth. I further request and direct my said executors, out of such moneys belonging to me as may come into their hands, to provide for the support and maintenance of my family, and the proper education of my minor children, to wit, Maurice G. Higgins, Arthur E. Higgins, Helen U. Higgins, Hilda H. Higgins, Ronald Higgins, and Gerald Higgins. Seventh. It is my wish and request that all the members of my family, while they remain unmarried, shall continue to live together at my present homestead, and, so far as possible, be united in business, and endeavor to carry out my wishes and plans relative to business, as I have heretofore explained to them. Eighth. After deducting all necessary expenses of the settlement of my estate, and the support and maintenance of my family, and the education of my minor children, I hereby devise and bequeath all the residue and remainder of my estate, of every kind and nature, and wheresoever situated, unto my wife, Julia P. Higgins, and my children, Francis G. Higgins, John R. Higgins, George C. Higgins, Maurice G. Higgins, Arthur E. Higgins, Helen U. Higgins, Hilda H. Higgins, Ronald Higgins, and Gerald Higgins, equally, share and share alike, and it is my will and meaning that the provision herein made for my said wife, in manner and form as aforesaid, shall be, and shall be deemed, adjudged, and taken to be, in lieu and bar of her dower, or other portion of and in all my estate. Ninth. I hereby nominate and appoint my wife, Julia P. Higgins, and my sons Francis G. Higgins, John R. Higgins, and George C. Higgins to be executors of this, my last will and testament (without bond); and, in case of the death or refusal to act of any of them, the survivors or others of them are hereby empowered to act and carry out the provisions of this instrument.”

Francis G. and George C. Higgins, each for himself, filed an affidavit to the effect that they were conversant with the condition of the estate of the decedent, and that at the time of his death he owned nothing; that the expenses of his last sickness and his funeral were paid; that the will was duly approved, admitted, and probated on November 16, 1889; and that no debts or claims of any kind have been presented to the executors and trustees. Julia P. Higgins, one one of the surviving executors and trustees, also swears that no claims have been presented, and that the funeral expenses and the expenses of the last illness of decedent were paid.

McConnell, Clayberg & Gunn and Webster & Wood, for appellant.

H. J. Haskell and Ella. L. Knowles, for respondent.

HUNT, J. (after stating the facts).

Whether or not the district court exceeded its jurisdiction in making an order requiring the executors of the will of decedent to file an inventory and accounting is the ultimate question to be decided by the court. But, in reaching a conclusion upon this very important case, it becomes proper to discuss several incidental questions involved: (1) The attitude of appellants towards the court, under the will of decedent. (2) If they are executors, what may the court say must be done by them under the law? (3) To what extent shall their executorial duties go before they may be discharged, if a discharge be necessary at all? (4) If trust duties are imposed by the terms of the will, at what period of time may there be a discharge of appellants as executors, and a distribution to them as trustees? We do not find it necessary to enter into any discussion of the question of what the rights of the appellants may have been had they never qualified as executors, or to examine at any length exactly what powers were conferred upon them independently of their executorial duties and the trusts imposed in the performance of such duties. The appellants stand before the court as having been named by the decedent as the executors off his will and testament, and as having voluntarily rendered themselves subject to the jurisdiction of the district court by duly petitioning for the probate of the will, and by duly receiving appointments as executors, according to law.

The will conferred authority upon the appellants to perform duties within the general powers of executors as such. It is not claimed, and could not be, we take it, that these executorial powers were illegally assumed, but merely that, although they were assumed by the appellants, still, under the provisions of the will, the title in fee to all of the estate of the decedent passed to and vested in the persons named executors, as trustees, immediately upon the death of the decedent. It is therefore contended that no inventory need be filed; that no notice to creditors need be given, and that, without proceeding any further than to probate the will, administration is unnecessary, and not demanded by the laws of the state; that no accounting is required by the executors as such; and that without any formal...