In re Kostohris' Estate

• Decision Date: 10 February 1934
• Docket Number: 7190.
• Parties: In re KOSTOHRIS' ESTATE. v. KOSTOHRIS. GROENE
• Court: Montana Supreme Court

29 P.2d 829

96 Mont. 226

In re KOSTOHRIS' ESTATE.

GROENE v. KOSTOHRIS.

No. 7190.

Supreme Court of Montana

February 10, 1934

Appeal from District Court, Fergus County; Edgar J. Baker, Judge.

Proceedings in the matter of the estate and guardianship of Charles Kostohris, an incompetent, wherein Joseph F. Kostohris former guardian, filed his account, opposed by Merle C Groene, present guardian. From an order charging the former guardian with certain sums of money and directing the payment of such amounts to the guardian in succession, the former guardian appeals.

Order reversed and cause remanded with directions.

Notice of hearing and settlement of guardian's final account is jurisdictional, but appearance and participation by guardian in proceedings cures failure to give notice (Rev.Codes 1921 §§ 10300, 10463).

Charles W. Buntin and Belden & DeKalb, all of Lewistown, for appellant.

Merle C. Groene, of Lewistown, in pro per.

Claude L. Meredeth, of Helena, amicus curiae.

MATTHEWS Justice.

Joseph F. Kostohris, former guardian of the person of estate of Charles Kostohris, an incompetent, has appealed from an order of the district court of Fergus county, declaring him personally responsible for and chargeable with sums aggregating $13,504.47 and directing the payment of that amount to the guardian in succession, Merle C. Groene.

Charles Kostohris, a world war veteran, was declared incompetent, and Joseph F. Kostohris, his father, was appointed guardian of his person and estate in 1922. The appointee duly qualified in Cascade county where the appointment was made. Due to changes in residence, the guardianship proceedings were transferred from Cascade to Judith Basin county, and later to Fergus county. The guardian acted continuously from September, 1922, to January, 1933, during which period he filed but four "annual" accounts, all of which were heard, settled, and allowed, the last of these being approved September 3, 1930. A fifth account was filed in September, 1931, but was not presented for settlement. In July, 1932, an "Amended Fifth Annual Account" was filed, but no action was taken thereon.

On January 10, 1933, Joseph F. Kostohris was removed as guardian and ordered to make his final accounting to the court, and on February 21, 1933, Merle C. Groene was duly appointed and qualified as guardian of the incompetent. On March 11, 1933, Kostohris filed what is entitled his "Second Amended Fifth Annual Account," whereupon the court made an order appointing March 21, 1933, as the day for the settlement of the account, and notice thereof was duly posted. Both the order and notice provided for the settlement of the "Second Amended Fifth Annual Account" of "Joseph F. Kostohris, formerly guardian of the Estate of Charles Kostohris."

The matter came on regularly for hearing on March 21st, at which time Charles W. Buntin, an attorney at law, appeared on behalf of the former guardian; Merle C. Groene, also an attorney at law, appeared in propria persona, and Claude L. Meredith, attorney for the veterans' administration, appeared as amicus curiae. Suggestion was made at the outset that Kostohris, having been removed and ordered to file his final account, should be before the court with such an account; whereupon the court asked counsel for the former guardian if he intended the account as his final account, and counsel replied that "it would be a final account." All parties then agreed to treat the account before the court as the final account required, and proceeded with the hearing. Kostohris testified in support of the account and was cross-examined by both Meredith and Groene.

After the taking of testimony, some discussion arose as to the necessity of having a transcript of the evidence. The court stated, "I don't know until we get this transcript *** as to whether or not further proof is going to be necessary." Mr. Meredith stated that the transcript would be "almost absolutely necessary" to him, whereupon the court asked, "And from that you wish to formulate your further objections?" to which Meredith replied, "Not that, your Honor. We wish to submit it more in the nature of a memorandum for the assistance of the court." The court then stated that the transcript should be ready in ten days, and upon its receipt counsel could "prepare memoranda and submit them," and suggested to counsel for the former guardian that he "in the interim" submit his authorities on objection to the appearance of the government. Here the record recites, "Hearing closed." There follows the recitation, "Further Hearing" April 11, 1933. The appearances are as on the hearing of March 21st.

Meredith then offered a four-page "list of payments" of disability compensation and insurance claimed to have been made by the government to the former guardian, purporting to show the number, date, and exact amount of each check issued, with the affidavit of the "Director of Finance of the Veterans' Administration" that the same is a "true, correct and complete statement" of such payments, as shown by the records in his office. The purpose of the introduction of this statement was to "clarify" the evidence, as to the payments, given on the hearing. The statement was admitted over the objection of counsel for the former guardian. No further evidence was adduced at the hearing on April 11th. The matter was then finally submitted to the court, and in due time the court made findings of fact and conclusions of law, resulting in the order from which this appeal is taken.

There is some contention made that, by reason of insufficient notice, the court was without jurisdiction to hear and settle the former guardian's final account. As above noted, the notice given recited that, on the day specified, the court would hear and settle an "annual" account, but all parties before the court agreed March 21st that the account presented was the former guardian's final account, and consented to the hearing as of such an account. While there was no formal notice of a further hearing to be held on April 11th, the hearing of March 21st was in effect continued for an indefinite period for further proceedings with reference to the settlement of the account, and on April 11th all parties present at the hearing on March 21st were before the court and participated in the further hearing, thus conferring jurisdiction of the persons involved.

The provisions of the Codes regulating the practice relative to estates of decedents are applicable to guardianship proceedings. (Section 10463, Rev. Codes 1921.) Section 10300, Id., declares that when the account rendered for settlement in a probate proceeding is a final account, and a petition for the final distribution of the estate is filed therewith, the notice of the settlement must state those facts. The purpose of this provision is obviously to bring all parties interested in the estate and its distribution within the jurisdiction of the court and bind them by the orders thereafter made closing the estate.

The notice required in probate proceedings serves the purpose of a summons in an ordinary action and is jurisdictional, but, as in the ordinary action, appearance and participation in the action cure the defect of failure of service, so in a probate proceeding, appearance and participation in the proceedings cure defective notice or failure to give notice, and one who has appeared and taken part in the hearing, as did the former guardian and his counsel here, will not be heard to say that the court did not have jurisdiction to determine his rights or liabilities. In re Davis' Estate, 35 Mont. 273, 88 P. 957; Hoppin v. Long, 74 Mont. 558, 241 P. 636; Oliveri v. Maroncelli, 94 Mont. 476, 22 P.2d 1054.

It is suggested that it is not proper to consider the account before the court as a "final" account "in view of the consequences that may flow from such consideration," and that, should it be held that the guardian by participation waived notice, nevertheless "there are other interested parties who are entitled to notice of any proceeding as to which they are to be legally bound." This reference is clearly intended to include the sureties on the guardian's bond.

Regardless of how designated, any report as to the last or final acts of a guardian, on which a hearing is had and on which the court fixes and determines the amount due the ward's estate from a guardian then or theretofore removed from office, is the "final" account of such guardian, in so far as the guardian is concerned. Egan v. Vowell, 66 Okl. 61, 167 P. 205, and cases cited. Herein it was conceded that the account on which the hearing was had was intended as a "final" account, and it was so in fact. As to misdesignation of a guardian's account, see, also, McCauley v. American Surety Co., 81 Mont. 161, 263 P. 90.

The surety on the guardian's bond is not a necessary party to such a proceeding, or entitled to notice thereof, and in the absence of fraud it is conclusive as to the adjudication therein made. Southern Surety Co. v. Jefferson, 73 Okl. 7, 174 P. 563; Rice v. Wilson, 129 Mich. 520, 89 N.W. 336; Kenner v. Caldwell, Bailey Eq. (8 S. C. Eq.) 149, 21 Am. Dec. 538. Consequently, in the absence of fraud or mistake, when such an adjudication becomes final by reason of the failure to appeal, or by affirmance on appeal, it is binding on the sureties though they were not made parties to the proceeding or notified thereof, or where they did not participate therein. Botkin v. Kleinschmidt, 21 Mont. 1, 52 P. 563, 69 Am. St. Rep. 641; Langdon v. Langdon, 104 Neb. 619, 178 N.W. 178; Gantz v. Gease, 82 Ohio St. 34, 91 N.E. 872; Chilton v. Parks, 15 Ala. 671; Fahey v. Boulmay, 24 Tex.Civ.App. 279, 59 S.W. 300; Shepard v. Pebbles, 38 Wis. 373; see 28 C.J. 1294.

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