In re Graff's Estate

• Decision Date: 16 November 1946
• Docket Number: 8652.
• Citation: 174 P.2d 216,119 Mont. 311
• Parties: In re GRAFF'S ESTATE.
• Court: Montana Supreme Court

174 P.2d 216

119 Mont. 311

In re GRAFF'S ESTATE.

No. 8652.

Supreme Court of Montana

November 16, 1946

Appeal from District Court, Second District, Silver Bow County Jeremiah J. Lynch, Judge.

Proceeding in the matter of the estate of Edward Graff, deceased. From an other sustaining objections of Edna Firebaugh to appointment of Carl Graff as administrator of the estate of Edward Graff, deceased, and granting the petition of Mary Walsh, public administrator, for letters of administrator of the estate, Carl Graff appeals.

Order affirmed.

J. F. Emigh and H. D. Carmichael, both of Butte for appellant.

M. J Doepker, of Butte, for respondent.

CHEADLE, Justice.

Appeal from an order sustaining objections of Edna Firebaugh to the appointment of Carl Graff as administrator of the estate of Edward Graff, deceased, and granting the petition of Mary Walsh, public administrator, for letters of administration of said estate.

On June 5, 1945, Carl Graff, the appellant, filed his petition for letters of administration of said estate, listing certain personal property of the stated value of $5,550. On June 30 1945, Edna Firebaugh, a daughter of the deceased, filed her written objection to the said petition on the ground that the petitioner was imcompetent to act as administrator by reason of his want of integrity in that 'the said Carl Graff having been entrusted with the legal title to valuable real property belonging to Edward Graff, as trustee for himself and your objector, Edna Firebaugh, has repudiated said trust and wrongfully claims sole ownership in himself in said real property and in his said petition for letters of administration has willfully failed to list said property among the assets of the estate of Edward Graff, deceased.

'That said Carl Graff, while lawfully bound to transfer the legal title to said real property as trustee, to Edward Graff, as trustor, has been guilty of want of integrity in this; that after repeated demands on him by the said Edward Graff, during the years 1944 and 1945, to deed said property to Edward Graff, refused and wrongfully claimed said property as his own.'

The real property involved consists of two lots in the city of Butte on which is located an apartment house and a residence, together with furniture and fixtures, alleged to have a value in excess of $6,000.

On July 11, 1945, Mary Walsh, as nominee of Edna Firebaugh, filed her petition for letters of administration, listing property including the real estate mentioned, of the total value of $12,100.

Thereafter Carl Graff filed his answer to the objections of Edna Firebaugh, denying the material allegations thereof and asserting lack of jurisdiction of the trial court sitting in probate, to try and determine the issues involved which ultimately affect and determine the title to the property. Thereafter Carl Graff filed his objections to the appointment of Mary Walsh as administratrix based principally on the ground that she is not entitled to such appointment inasmuch as Carl Graff, a son of the deceased and a resident of the state of Montana and competent to act, has presented his petition for such appointment.

Both petitions and the objections thereto were set for hearing and evidence adduced by both parties and the matter was submitted to the court on July 21, 1945. Thereafter the district court made its order sustaining objections of Edna Firebaugh to the appointment of Carl Graff and overruling the objections of Carl Graff to the appointment of Mary Walsh, and appointment Mary Walsh as administratrix of the estate. Such order is based upon the finding 'that the said Carl Graff is wanting in integrity in view of his recent dealings with and treatment of his father, the said deceased, with respect to the real property described in the said petition of Mary Walsh; that the said Carl Graff asserts an interest in and to said real property adverse to that of the estate of the said Edward Graff, deceased, therein.'

Appellant specifies 20 errors of the trial court, consisting of the admission of testimony over the objections of appellant. As stated by appellant, the question for determination is whether or not evidence adduced at the hearing, most of which is alleged to be inadmissible, is sufficient to establish the necessary want of integrity of Carl Graff and sufficient to justify the court's refusal to issue letters of administration to him. Appellant's contention is that the court was called upon to try title to the real estate involved and that it was impossible for the court to rule upon Graff's want of integrity without first trying title to such real estate. He argues that the objector's claim that appellant is holding the real estate in trust for himself and Edna Firebaugh, while appellant claims to be the owner in fee simple, the trial court must have found objector's claim to be true and that title to the real estate vested in the heirs of the deceased, to sustain a finding of want of integrity on the part of appellant.

Section 10072, Revised Codes of 1935, provides:

'No person is competent or entitled to serve as administrator or administratrix who is: * * *

'4. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity.'

Under the provisions of this section, after hearing, the district court found and adjudged Carl Graff incompetent to act as administrator by reason of his want of integrity. We recognize the established rule that in this jurisdiction a trial court, sitting in probate, is without power to try title to real property. Appellant insists that the trial court's finding of want of integrity is by necessary implication also a finding that the title to the involved property is as alleged in the objections of Edna Firebaugh, and its order a determination of such title. With this contention we cannot agree. While the evidence upon which the order was based necessarily developed facts bearing upon the question of ownership, that question was not attempted to be determined. From the facts developed, the trial court merely determined the existence of such a want of integrity on the part of Carl Graff, and the assertion by him of an interest adverse to the estate, as to render him incompetent to act as administrator. We are unable to agree that the order in question would in any way affect the outcome of any subsequent action to determine the title, whether or not the estate or the administrator thereof should become parties thereto. The fact that the son of the deceased may have had a claim adverse to the estate did not, of itself, render him incompetent to act as administrator. The matter of the granting or refusal of his application was within the discretion of the trial court, and its order, in the absence of showing of abuse of such discretion, will not be disturbed.

In Re Rinio's Estate, 96 Mont. 344, 30 P.2d 803, 804, this court said:

'Under section 10068, Revised Codes 1921 Frederick Rinio was entitled to letters, and, on his written request, William [Frederick's son] was entitled thereto (section 10082, Id.), and the fact that the father had an adverse claim against the estate did not render either 'incompetent.' In re Blackburn's Estate, 48 Mont. 179, 137 P. 381; In re Rollins' Estate, 189 Cal. 392, 208 P. 280. However, in such circumstances the court, in the exercise of a wide discretion, may deem the applicant not a proper person to hold the office (Putney v. Fletcher, 148 Mass. 247, 19 N.E. 370; Marks v. Coats, 37 Or. 609, 62 P. 488), and may, when necessary or expedient to protect the estate or creditors, either refuse the appointment or remove the administrator (In re Dolenty's Estate, 53 Mont. 33, 161...