In re Estate of Fleshman

• Decision Date: 02 December 1931
• Docket Number: 5755
• Citation: 5 P.2d 727,51 Idaho 312
• Parties: In the Matter of the Estate of JOHN EDWARD FLESHMAN, Deceased. v. T. J. FLESHMAN, Executor of the Will and Estate of JOHN EDWARD FLESHMAN, Deceased, Respondent JULIA N. FLESHMAN, Appellant,
• Court: Idaho Supreme Court

5 P.2d 727

51 Idaho 312

In the Matter of the Estate of JOHN EDWARD FLESHMAN, Deceased.

JULIA N. FLESHMAN, Appellant, v. T. J. FLESHMAN, Executor of the Will and Estate of JOHN EDWARD FLESHMAN, Deceased, Respondent

No. 5755

Supreme Court of Idaho

December 2, 1931

EXECUTORS AND ADMINISTRATORS-MANAGEMENT OF ESTATE-SUPPORT OF WIDOW AND MINOR CHILDREN.

1. Where widow voluntarily assumed burden of proving incorrectness of executor's account, she cannot complain that trial court did not impose on executor burden to prove correctness of his account.

2. Executor's power to borrow money, execute lease, or continue testator's business depends on will or statute and must be strictly pursued (C. S., sec. 7671).

3. "Use" in will directing that revenues be "used" by executor in caring for testator's dependents means handle or manage, and authorizes continuance of testator's business, subject to statute and probate court, without creating technical interest or power (C. S sec. 7671).

4. Where executor was directed to "use" revenues of the estate for certain purposes, loans or leases could be made only with probate court's approval (C. S., sec 7671).

5. Lease by executor to own son held illegal (C. S., sec. 7671).

6. Executors and administrators occupy fiduciary relations toward estate to which utmost fidelity is owed.

7. Right of testamentary disposition and right to take under will are statutory, and subject to probate court's power to provide for support of widow or minor children (C. S secs. 7565-7568).

8. Family allowance is analogous to probate homestead, which may be ordered even out of property specifically devised (C. S., secs. 7565-7568).

9. Where income of estate was insufficient to care for testator's dependents, probate court was under duty to make sufficient family allowance, even if necessary to use part of corpus of estate (C. S., secs. 7565-7568).

10. Necessary purchases already made by widow for self and family may be considered in determining amount of sufficient allowance (C. S., secs. 7565-7568).

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

From an order settling executor's account and providing a probate homestead and family allowance, Julia N. Fleshman appeals. Reversed.

Reversed and remanded.

Cox, Martin & Ware, for Appellant.

The general authority of an executor or administrator does not permit him to borrow money or charge the estate with interest on borrowed money unless such action is authorized by the probate court. (In re Millenovich, 5 Nev. 189; Exchange Nat. Bank v. Betts' Estate, 103 Kan. 807, 3 A. L. R. 1604, 176 P. 660; Sterrett v. Barker, 119 Cal. 492, 51 P. 695; In re Jennings' Estate, 74 Mont. 449, 241 P. 648.)

The general authority of an executor or administrator does not permit him to lease the real property of the estate unless authorization therefor is secured from the probate court. ( Hill v. Den, 54 Cal. 6; In re Will of Fox, 52 N.Y. 530, 11 Am. Rep. 751; Seeger's Exrs. v. Seeger, 21 N.J. Eq. 90; Worley v. Taylor, 21 Ore. 589, 28 P. 903; In re Campbell's Estate, 53 Utah 487, 173 P. 688; C. S., secs. 7668, 7671; 1919 Sess. Laws, chap. 57, at p. 167; Fargo v. Bennett, 35 Idaho 359, 206 P. 692; Mann v. Montgomery, 6 Cal.App. 646, 92 P. 875.)

It is improper and against public policy for an executor or administrator to lease property of an estate to his son. ( In re Laberee's Estate, 126 Ore. 301, 269 P. 861.)

Statutory provisions for family allowance are to be liberally construed as they are based on sound public policy. (In re Pugsley's Estate, 27 Utah 489, 76 P. 560; In re Hooper's Estate, 117 Wash. 463, 201 P. 740.)

The family allowance may be ordered and paid even in opposition to the terms of a will, as rights testamentary are subject to the power of the probate court to make reasonable provision for the widow and children. (In re Bump's Estate, 152 Cal. 271, 92 P. 643; Sulzberger v. Sulzberger, 50 Cal. 385; In re Cowell's Estate, 164 Cal. 636, 130 P. 209; In re Whitney's Estate, 171 Cal. 750, 154 P. 855.)

The amount of family allowance is dependent upon the condition of the estate and the circumstances of the family. In determining the amount thereof the condition in which the widow and her children were maintained by the decedent during his lifetime and the reasonable and necessary needs and requirements which have since arisen are determining factors. (Tyvand v. McDonnell, 37 N.D. 251, 164 N.W. 1; In re Stevens, 83 Cal. 322, 17 Am. St. 252, 23 P. 379; In re Lux, 100 Cal. 593, 35 P. 341; In re Pugsley's Estate, 27 Utah 489, 76 P. 560.)

P. E. Stookey, for Respondent.

The construction given the word "use" by the authorities gives the executor power to lease the land of the estate and perform other acts in the handling of the estate, similar to those performed by the decedent in his lifetime. (29 Am. & Eng. Ency. of Law, 2d ed., 444; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Russell v. Andres, 120 Ala. 222, 24 So. 573; Ewell v. Stewart, 110 Kan. 218, 203 P. 922; Special School Dist. No. 5 v. State, 139 Ark. 263, 213 S.W. 961; 7 Words and Phrases, 3d Series, 767, 768.)

It would be against public policy for the appellant to use as a basis for family allowance, debts that she has incurred with various merchants over a series of years. (C. S., sec. 7936, as amended by 1927 Sess. Laws, chap. 51, p. 67; Finnie v. Walker, 257 F. 698, 5 A. L. R. 831, 168 C. C. A. 648.)

Neither the probate nor district court in the making of the family allowance and approval of the account abused its discretion. (C. S., sec. 7565 (as amended 1927 Sess. Laws, chap. 51, p. 45); Ariz. Civ. Code 1928, sec. 3975; Cal. Code Civ. Proc. 1923, sec. 1476; Mont. Rev. Codes 1921, sec. 10146; Nev. Rev. Laws, 1912, sec. 5958; N.D. Comp. Laws 1913, sec. 8727; Okla. Comp. Stats. 1921, sec. 1227 (as amended by Sess. Laws 1925, p. 176); S.D. Rev. Code 1919, sec. 3349.)

GIVENS, J. Lee, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

John Edward Fleshman died testate, March 19, 1921. The material portions of his will are as follows:

"Second, that my executor or administrator take charge and keep all of my personal and real estate property together and use the same so as to bring in the best revenue until my youngest child shall become of legal age.

"Third, that the revenue derived from my property be used in caring for my wife Julia N and the children of my second wife Georgie May Fleshman, Mildred Clarice Fleshman, Woodrow Wilson Fleshman, and any children which may be borne hereafter, except there shall be taken from the said revenue enough money to pay the premium on a certain policy held by my wife for four thousand dollars,

"Fourth. At the time of my youngest child becoming of legal age, I direct that my property both personal and real shall be divided equally between my wife Julia N. Fleshman and all of the children both of my first and second wife whose names are as follows. Children of my wife Charlotte Francis, Agnes Matilda Fleshman, Verna Warren Fleshman, of my wife Julia N. Fleshman, Georgie May Fleshman, Matilda Clarrice Fleshman, Woodrow Wilson Fleshman, share and share alike.

"Fifth, I direct and appoint my brother T. J. Fleshman my administrator, of this my last will and testament and hereby revoke all former wills by me made."

The will was admitted to probate April 16, 1921, and T. J. Fleshman appointed executor.

Thereafter, the executor, without applying to the probate court as provided for in C. S., chap. 281, leased the premises at various times to various persons, among others, his son, and borrowed money for the estate in various amounts from time to time.

No order for family allowance was made, nor account rendered by the executor until February 13, 1930, when decedent's widow, appellant herein, made application therefor, to the probate court.

During the above period, the executor, without order, had paid various sums to the widow for the support of herself and children and the widow had on her own account made purchases from various merchants. The executor, likewise, without any order from the probate court, paid various amounts less than the total thereof, on these accounts incurred by the widow, some of which had been reduced to notes, signed by appellant and one of her children.

Appellant objected to the settlement of the executor's account in the probate court, and on appeal to the district court, and herein, urging that the executor had no right to lease the property or borrow money without an order of the probate court in accordance with the provisions of the statutes; that the family allowance ordered was insufficient, and should be sufficient to enable appellant to repay the merchants for the purchases made by her prior to, and since, her husband's death; that the executor had no right to lease property to his son.

Appellant voluntarily, and without objection, in effect assumed the burden of proving the incorrectness of the executor's account filed, and may not now complain that the trial court did not properly impose this duty on respondent.

Respondent's contention that the assignments of error are insufficient, is without merit.

No charge was made that the leases or loans were not for the benefit of the estate, or that the heirs of the estate had been in any way injured thereby, and the appellant stated that only the legal aspect of the leases and loans was raised, and no evidence was introduced affording a basis for the infliction upon the executor of any penalty for not complying with the statutes; hence, the only point involved was the legality of his acts in this regard.

Inasmuch however, as the court made findings that the executor had...