In re Estate of Nuncio
| Decision Date | 10 July 1937 |
| Docket Number | 6296 |
| Citation | 70 P.2d 380,58 Idaho 60 |
| Parties | In re Estate of MIKE DE NUNCIO (Sometimes Known as MIKE ROSSI), Deceased. v. FLORENCE MURRAY, Appointed by the Probate Court of Idaho County, Administratrix, Respondent and Cross-Appellant TONY DENZO, Claimant, Appellant, |
| Court | Idaho Supreme Court |
EXECUTORS AND ADMINISTRATORS-PUBLIC ADMINISTRATOR-ESTATES TO BE ADMINISTERED.
The probate court of county in which one dying intestate without known heirs in another county resided should issue letters of administration on his estate to public administrator of latter county, instead of appointing one who is neither relative nor creditor of deceased as administratrix. (I. C A., secs. 15-101, 15-312, 15-1602, 15-1603; sec. 15-301 et seq.)
APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.
Appeal by Denzo from the portion of the judgment denying administration to him, and requiring appointment of public administrator of Idaho county; and cross-appeal by Florence Murray from the portion of the judgment ordering appointment of public administrator of Idaho county. Reversed in part and remanded.
Reversed in part and remanded. No costs allowed.
Leo McCarty, for Appellant.
The evidence clearly shows that Tony Denzo is a nephew of said deceased, and is competent, and is entitled to have letters of administration on said estate issued to himself. (Sees 15-312, 15-321, 15-322, 15-1602, I. C. A.; In re Estate of Daggett, 15 Idaho 504, 98 P. 849; In re Olcese's Estate, 210 Cal. 262, 291 P. 193; In re Myers' Estate, 9 Cal.App. 694, 100 P. 712; Li Po Tai's Estate, 108 Cal. 484, 41 P. 486; In re Owens' Estate, 30 Utah 351, 85 P. 277.)
The evidence clearly shows that Tony Denzo is a nephew of said deceased, and that at the time of his death the said deceased left known heirs in the state of Idaho, competent to administer on said estate, and the court erred in ordering the appointment of the public administrator to administer said estate. (In re Estate of Daggett, supra; In re Olcese's Estate, supra; In re Myers' Estate, supra.)
A. S Hardy, for Respondent and Cross-Appellant.
Appellant Florence Murray, being a "person legally competent," was one "entitled" to be appointed administratrix by the express terms of sec. 15-312, subd. 11; and anyone who might have a better right was required to file his contest and claim the issuance of letters to himself. (Secs. 15-312, 15- 318, 15-321 and 15-324, I. C. A.; In re Healy's Estate, 122 Cal. 162, 54 P. 736; Estate of Kirtlan, 16 Cal. 161, 162.)
No issue was raised by the public administrator or anyone in the probate court against the right of Florence Murray to be appointed administratrix, and it was not an issue on appeal. The district court, exercising merely appellate jurisdiction, could only consider and retry issues and questions which had been raised and tried in the court below and which appeared of record. It had no original jurisdiction. (Secs. 15-312, 15-318, 15-321 and 15-324, I. C. A.; Estate of McVay, 14 Idaho 56, 68, 93 P. 28; Fraser v. Davis, 29 Idaho 70, 76, 156 P. 913, 158 P. 233; Kent v. Dalrymple, 23 Idaho 694, 701, 132 P. 301; Collins v. Lindsay, 33 Idaho 230, 191 P. 357; Kline v. Shoup. 38 Idaho 480, 220 P. 45.)
The public administrator can be appointed administrator of a particular estate only on petition in writing for his appointment. He is not general administrator of any particular estate merely by virtue of his office, but letters of general administration must be granted to him on each estate. Until so appointed any authority he may have is merely that of a special administrator or custodian. (Secs. 15-312, 15-318, 15-321, 15-324, 15-325, 15-1602, 15-1603, I. C. A.; Bancroft's Probate Practice, vol. 1, p. 454; Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237; Matter of Estate of Hamilton, 34 Cal. 464, 468.)
After an opinion was rendered in this case a rehearing was granted. The following is substituted for the original opinion now withdrawn.
Ailshie, J., did not sit nor participate in the opinion herein.
,--Mike De Nuncio, sometimes known as Mike Rossi, a resident of Idaho County, died intestate in Nez Perce county, leaving an estate consisting of personal property. The sheriff and corner of Idaho county petitioned the probate court of that county, doubtless under I. C. A., sec. 15-101, to appoint Florence Murray, neither a relative nor creditor of the deceased, administratrix. Tony Denzo filed his opposition thereto and applied for letters of administration thereto on his own behalf as a nephew of deceased. The court denied Denzo's petition and opposition and appointed Miss Murray administratrix. On appeal by Denzo the district court reversed the probate court as to Miss Murray because she was not in any class enumerated in I. C. A., sec. 15-1602, affirmed as to Denzo because the evidence was insufficient to show he was a relative, and ordered the probate court to appoint the public administrator of Idaho county. Both have herein appealed, Denzo specifying the denial of his petition and the portion of the judgment ordering the appointment of the public administrator of Idaho county as error. Miss Murray assigns as error the portion of the judgment discharging her from her appointment and ordering her to account, and that portion not affirming the order of the probate court appointing her administratrix; and the portion of the judgment ordering that the probate court appoint the public administrator of Idaho county as administrator.
Thus, no one by assignment of error questions the jurisdiction of the probate court of Idaho county, for which reason we do not discuss or decide that point, and in limine it is sufficient to say the probate court of Idaho county and the district court were justified in finding that Denzo had not proved himself a relative of deceased.
Section 15-1602, I. C. A., as material herein, provides as follows:
The two precedent conditions bringing into operation this section of the statute, were that De Nuncio died in Nez Perce county and that there were no known heirs. While the point is attempted to be made that under I. C. A., sec. 15-1603, the public administrator of the county where a party dies, where he is resident of another county of the state, only "takes charge of the estate," the reference in I. C. A., sec. 15-1602, supra, to chapter 3 of title 15, which generally defines the rights and duties of executors and administrators, does not negative the force of the initial provision in sec. 15-1602, supra, that the public administrator of the county where one dies is the proper administrator to administer the estate, and finds additional support in section 15-312, I. C. A.
No case has been cited nor have we found one which is directly in point and there is nothing in other statutes with regard to the administration of estates which either impliedly or directly nullifies or minimizes the effect of section 15-1602, supra, which in turn is based upon a substantial reason and ground. The public administrator should be appointed where there are no known heirs, creditors, or claimants because the Legislature evidently and with propriety intended that the state should receive as large an amount as possible from such escheating estates and a minimum of or no expense would be connected with administration by the public administrator.
While neither the public administrator of Idaho nor Nez Perce counties are now before us, orderly procedure justifies us, in reversing the judgment of the district court, to call attention to section 15-1602, supra, providing that the probate court should issue letters of administration to the public administrator of Nez Perce county covering the estate in question.
Judgment of the district court is thus reversed in part and remanded to the probate court for further proceedings in accordance herewith. No costs allowed.
Ailshie, J., did not sit nor participate in the opinion herein.
Mike De Nuncio, sometimes known as Mike Rossi, died intestate in Lewiston, Nez Perce county, April 22, 1935, leaving an estate of personal property in Nez Perce county and Idaho county the deceased being a resident of the latter county at the time of his death. April 24, 1935, the coroner and sheriff of Idaho county filed their petition in the probate court of Idaho county seeking to have Florence Murray appointed administratrix of the estate of De Nuncio, the petition being noticed for hearing May 4, 1935. May 1, 1935, appellant Tony Denzo, duly and regularly served and filed objection to said petition, alleging he was an heir and nephew of deceased and also filed his petition seeking letters of administration to be issued to himself. The petitions came on for hearing May 23, 1935, and the probate court made and entered its order denying and dismissing the petition of appellant Denzo and made and entered an order appointing Florence Murray administratrix of the estate. June 12, 1935, appellant Denzo appealed to the district court of Idaho county from the order of the probate court. The matter came on regularly for trial in the district court June 18, 1935, and on said day the district court made and entered an order denying the petition of both the sheriff and coroner of Idaho county and appellant Denzo, and made and entered an...
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