In re Estate of Christensen

• Decision Date: 22 January 1909
• Citation: 15 Idaho 692,99 P. 829
• Parties: In the Matter of the Estate of INGVART CHRISTENSEN, Deceased
• Court: Idaho Supreme Court

99 P. 829

15 Idaho 692

In the Matter of the Estate of INGVART CHRISTENSEN, Deceased

Supreme Court of Idaho

January 22, 1909

PROBATE MATTERS-APPEAL TO DISTRICT COURT-ISSUES TO BE TRIED-DISMISSAL OF APPEAL.

1. Under the provisions of sec. 5521, Rev. Codes, when return of sale is made and filed, any person interested in the estate may file written objections to the confirmation of sale, and may be heard thereon, in which case the return to the order of sale and the objections made thereto constitute the issues to be tried and determined by the probate court.

2. From the judgment entered upon the hearing of such matter an appeal may be taken to the district court.

3. Upon the hearing in the district court, the case must be retried upon the same issues presented to the probate court, and witnesses may be called and testify the same as in the trial of any other cause.

4. The fact that either party failed to present evidence in support of the issues made in the probate court is not a ground or reason for dismissing the appeal to the district court, and the proof offered or a showing that no proof was offered in the probate court cannot be presented to the district court by affidavit in support of a motion to dismiss the appeal, as the cause in the district court is to be tried de novo upon the issues made in the probate court.

5. In a probate matter the fact that either party failed to offer proof in support of the issues presented in the probate court is not a ground for dismissing an appeal taken to the district court, or a matter which can be urged or considered on a motion to dismiss such appeal.

6. When an appeal to the district court in a probate matter is completed, the case is transferred to the district court to be tried de novo, and the fact as to the offering of proof or the failure to offer proof in the probate court is of no consequence whatever.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District for the County of Custer. Hon. J. M. Stevens, Judge.

Objections were filed to confirming the sale of real estate by the administrator. Sale confirmed by the probate court. Appeal taken to the district court and on motion appeal dismissed. This appeal is from the order of the district court dismissing the appeal from the probate court. Reversed.

Judgment of the district court reversed. Costs awarded to appellant.

Milton A. Brown, and E. J. Frawley, for Appellant.

W. W Adamson, for Respondent.

Counsel cite no authorities on points decided.

STEWART J. Ailshie, J., concurs.

OPINION

STEWART, J.

On January 25, 1908, George W. Emery, administrator of the estate of Ingvart Christensen, made return of sale of certain mining property belonging to said estate, and petitioned the probate court of Custer county, Idaho, for an order confirming such sale. Notice of the hearing upon such order was given, objections were filed to the confirmation of such sale by Signa Jensen, a creditor of the estate of Ingvart Christensen. The objections came on for hearing and on February 5, 1908, the probate court of Custer county made an order overruling the objections to the confirmation of the sale made by the administrator, and entered an order confirming such sale. From the order confirming such sale Signa Jensen appealed to the district court on questions of both law and fact. In the district court the administrator moved to dismiss the appeal upon the following grounds: First, that appellants herein did not appear and object to confirmation of sale as required by sec. 5521 of the Rev. Stat. of 1887; second, that evidence was not produced as required by law showing that the price for which the property was sold was disproportionate to its value; third, that no bid whatever in excess of ten per cent, exclusive of the expenses of a new sale, was received. Affidavits were filed by appellant upon the hearing of the motion to dismiss the appeal and counter-affidavits were filed by the administrator. A hearing was had upon the motion to dismiss the appeal and on April 8, 1908, the district court made an order dismissing said appeal upon the grounds as stated in the order "that appellant herein did not appear and object to confirmation of sale as required by sec. 5521 of the 1887 Rev. Stat. of the state of Idaho; that evidence was not produced as required by law showing that the price for which the property was sold was disproportionate to its value; that no bid whatever, in excess of ten per cent exclusive of the expenses of the sale was received, and that appellants or no other parties whatever have, up to the present time, offered any bids for said property whatever."

From this order and judgment this appeal is taken. An examination of the order made by the district court discloses the position assumed by the district court in dismissing the appeal from the probate court. It was that because the person filing the objections to the confirmation of sale did not appear before the probate court and introduce evidence showing that the price for which the property was sold was not disproportionate to its value, and did not offer or submit or show that a bid could be secured in excess of ten per cent, exclusive of the expenses of sale, and that no other bid had been presented.

Revised Codes, sec. 5521, provides:

"When return of the sale is made and filed, any person interested in the estate may file written objections to the confirmation thereof, and may be heard thereon when the return is heard by the court or judge, and may produce witnesses in support of his objections."

Sec. 5522 provides:

"If it appears to the court that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, and that a greater sum as above specified cannot be obtained, or if the increased bid before mentioned be made and accepted by the court, the court must make an order confirming the sale and directing...