In re Hawgood's Estate
| Citation | 37 S.D. 565,159 N.W. 117 |
| Decision Date | 09 September 1916 |
| Docket Number | Nos. 3994-3996.,s. 3994-3996. |
| Parties | In re HAWGOOD'S ESTATE. |
| Court | Supreme Court of South Dakota |
OPINION TEXT STARTS HERE
Appeals from Circuit Court, Lawrence County; James McNenny, Judge.
In the matter of the estate of John N. Hawgood, deceased. From an order for final distribution the widow and the executor separately appealed, and certain legatees cross-appeal. Judgment reversed, and cause remanded to the circuit court, with directions.George M. Martin, of Los Angeles, Cal., for appellant widow.
Eben W. Martin and Norman T. Mason, both of Deadwood, for appellants executors.
W. G. Rice, of Deadwood, for respondents and cross-appellants.
One John N. Hawgood died testate on the 6th day of September, 1908, leaving a will by which he disposed of his entire estate by legacies. In October, 1908, the will was admitted to probate in Lawrence county. Estate administration proceedings were had in the county court, property sold under the provisions of the will and orders of the court, creditors' claims filed and allowed, executors' reports and accounts filed and approved, and two partial decrees of distribution entered, and payments made thereunder by the executors. No final distribution has ever been made, although the executors have filed a petition, and for approval a report on final distribution, and a hearing had thereon, and an order for final distribution has been made, from which three separate appeals have been taken.
The wife of decedent, who was one of the executors, filed against the estate the following claim:
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¦Estate of John N. Hawgood, in Account with Mrs. Jennie Hawgood, Debtor.¦
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¦To cash February, 1902 ¦$2,060 ¦
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¦“ “ June, 1903 ¦1,500 ¦
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¦“ “ March, 1904 ¦500 ¦
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¦“ “ November, 1906 ¦1,000 ¦
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¦“ “ December, 1907 ¦500 ¦
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¦ ¦$5,560 ¦
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This account was verified as follows:
“Mrs. Jennie Hawgood, being sworn, says that the annexed account, amounting to $5,560.00, besides interest, is justly due her from the estate of John N. Hawgood, deceased, ***” etc.
This account or claim was allowed in full, with interest; such principal and interest amounting in the whole to $7,668.32, and which was ordered by the first decree of partial distribution to be paid to Mrs. Hawgood. On the hearing of the petition for final distribution, certain of the legatees under the will moved the court to open the question of the allowance of said account, and that the first item thereof, of $2,060, and all interest, be stricken therefrom and disallowed, on the ground that on the face of the account this first item was barred by the statute of limitations, and that no interest was claimed in the account itself, and by reason thereof the claim should have been allowed in no greater sum than $3,500. It is the contention of these moving legatees that, under section 177, Probate Code, providing that “no claim must be allowed by the executor or administrator, or by the judge, which is barred by the statute of limitations,” it was error to allow such item of said claim. The county court sustained this motion. The circuit court found that as a matter of fact the said item of said claim was not barred. From this finding the moving legatees have appealed.
[1][2] We are of the view that the evidence sustains the finding that during a portion of the limitation period the decedent was absent from this state, which tolled the statute. We are of the view that this section 177 relates to the question of fact as to whether the claim is barred, rather than to what may appear from the face of the claim; that the executor or administrator or judge should ascertain the facts, and from them determine whether or not the claim presented is barred by the statute of limitations. We are also of the view that the verification or oath of the claimant constitutes a part of the claim, and that the verification claiming interest on the account is sufficient. Therefore we are of the view that this claim, principal and interest, was properly allowed.
By two orders of partial distribution, one dated March 15, 1909, and one August, 1910, the said Jennie Hawgood was paid, as partial distribution, by the executors, two items, one for $1,000, and one for $7,631.68. On the hearing for final distribution certain legatees moved the court that said $1,000 item and said $7,631.68 item be disallowed, for the reason that it appeared from the face of the said account and upon the records and proceedings that said sums were not debts against said estate, nor paid during the course of administration, but were payments made on partial distribution to Jennie Hawgood, and could only be considered by the court on final distribution. This motion was granted in the county court. The present appellants, Jennie Hawgood and the executors, appealed therefrom to the circuit court.
It appears from the record that these two items, amounting to $8,631.68, were composed of $1,965.02, claimed by Jennie Hawgood as a specific legacy under paragraph 3 of the will, and $6,666.66 as a specific or demonstrative legacy under the fourth paragraph of the will. The circuit court found that the decrees in partial distribution were invalid as to two minor legatees, in that they were entered upon a misrepresentation in the petition in regard to the $1,965.02, the same being a general and not a specific legacy; that six other legacies, of $1,000 each, were demonstrative legacies; that sufficient of said $1,965.02 be returned to the estate by Jennie Hawgood and the executors to enable them to pay to the said two minor legatees $1,000 each and interest; that certain cash on hand, otherwise belonging to Jennie Hawgood, be distributed among certain demonstrative legatees, other than Mrs. Hawgood. An order for final distribution was entered in accordance with these findings, from which Mrs. Hawgood and the executors have separately appealed, and from which certain of the other legatees have also appealed.
Mrs. Hawgood and the executors assign as error the conclusion of the trial court that the decrees in partial distribution were not conclusive upon all parties interested, on the ground that the evidence showed there was no material misrepresentation of a fraudulent character, and that there was no misrepresentation of extrinsic or collateral matter which would justify the setting aside of such decrees; that the court erred in finding that the bequest to Mrs. Hawgood of all testator's personal property was a general and not a specific legacy, and that the six legacies of $1,000 each were demonstrative legacies; that the court erred in requiring the executors to refund to the estate certain moneys theretofore paid out by them under the orders of the county court; and that the court erred in ordering certain distribution to demonstrative legatees. The other appealing legatees assign as error the conclusion that certain moneys be returned to the estate, and the refusal of the court to make certain proposed findings of fact and conclusions of law in regard to matters of final distribution.
[3] It will be entirely impracticable, and will serve no useful purpose, to specifically consider all the separate assignments of error. The real matter in contention between the appealing and responding parties interested, as raised by the various assignments of error, grows out of the force and effect to be given to the decrees of partial distribution, and the interpretation and construction to be given to certain provisions of the will, and what final distribution should be made. We are of the view that final distribution should be made in this case the same as if no partial distributions had ever been made, for the reason that said orders or decrees made in partial distribution of the estate were wholly unauthorized and void.
[4] By section 302, Probate Code, a legatee may, at any time after the lapse of four months from the issuing of letters testamentary, present a petition for the legacy to which he is entitled to be given to him upon his giving a bond with security for the payment of his proportion of the debts. It is clear from a reading of this section that the giving of the bond is a jurisdictional condition precedent to the making of an order for partial distribution. The supreme importance and necessity of the statutory requirement for the giving of such bond as a precedent condition to partial distribution cannot be better illustrated than the facts of this case present. Here the whole contention arises over whose legacy shall be abated to pay debts. Such a bond, under the circumstances of this case, would protect the legacies from being wrongfully used to pay debts. Section 305 says that:
“If at the hearing it appears that *** the share of the party applying may be allowed to him without loss to the creditors of the estate, the court must make an order *** requiring [the] legatee *** obtaining such order, before receiving his share, or any portion thereof, to execute and deliver to the executor *** a bond.”
This section also clearly indicates that the giving of the bond is a jurisdictional condition precedent to the allowance of any...
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