In re McClellan’s Estate

• Decision Date: 03 April 1906
• Citation: 20 S.D. 498,107 N.W. 681
• Parties: IN THE MATTER OF THE ESTATE OF JOHN MCCLELLAN, Deceased. William Van Eps, Mary A. Vine et al., and John S. McClellan et al., Appellants.
• Court: South Dakota Supreme Court

20 S.D. 498

107 N.W. 681

IN THE MATTER OF THE ESTATE OF JOHN MCCLELLAN, Deceased. William Van Eps, Mary A. Vine et al., and John S. McClellan et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. A. W. Campbell, Judge Affirmed U. S. G. Cherry Attorney for Mary A. Vine. Grigsby & Grigsby Attorneys for James S. McClellan. Opinion filed, April 3, 1906

HANEY, J.

A resident of Sioux Falls, known as “John McClellan,” died intestate in that city August 3, 1899. Directly, numerous petitions for letters of administration were filed in the county court, among which were the following: One by E. J. Taber, as next friend and alleged creditor, praying appointment of himself; one by H. H. Keith, as an alleged creditor, praying appointment of himself; one by the State Banking & Trust Company, as an alleged creditor, praying appointment of E. J. Taber; one by Margaret Hammil and Mary McClelland, as alleged nieces of the decedent, praying appointment of William Van Eps; one by Mary A. Vine, on behalf of herself and others, as alleged brothers and sisters of the decedent, praying appointment of Cyrus Walts. On the hearing of these petitions the county court appointed Van Eps, to whom letters of administration were issued, and who duly qualified and entered upon the discharge of his duties. From the order appointing Van Eps, separate appeals were taken to the circuit court, on questions of both law and fact, by Keith, Vine, and the trust company After these appeals had been perfected, James S. McClelland filed in the county court a petition reciting in detail what had previously taken place and alleging that Van Eps was not related to the decedent; that the decedent’s sole surviving heirs were certain alleged sons and grandsons; that he “contests and opposes each and every of the petitioners” therein mentioned; and praying that Van Eps letters be revoked. This petition was denied and an appeal taken to the circuit court on questions of both law and fact. For the sake of brevity, these alleged sons and grandsons will be termed the “Arkansas claimants”; the alleged brothers and sisters, represented by Mary A. Vine, the “Canadian claimants”; and the alleged nieces, Mary Hammil and Mary McClelland, the “Ireland claimants.” In the circuit court Van Eps, as administrator, the Canadian and the Ireland claimants, moved to dismiss the appeal of the Arkansas claimants on the following grounds: (1) That no sufficient appeal bond had been filed; (2) that the order appealed from was not entered before the appeal was taken; and (3) that neither the circuit nor the county court had jurisdiction thereof, for the reason that the Arkansas claimants’ petition was filed in the county court after the matter of Van Eps’ appointment had been removed by appeal to the circuit court. This motion was denied. At the April, 1900, term of the circuit court the Arkansas claimants “moved the court to submit to the determination of a jury all the issues of fact involved in the several appeals, said motion was granted, and all parties to said appeals consented to the trial of all said appeals together in one trial, and thereupon the court so ordered.” The trial resulted in a verdict favorable to the Canadian claimants. Afterwards, on motion of the Ireland and Arkansas claimants, a new trial was granted. On June 11, 1901, the matter again came on for hearing before the circuit court; all previous parties, except the Canadian, Ireland, and Arkansas claimants, and the administrator being in default. Thereupon the Canadian claimants moved the court to submit certain proposed issues of fact to a jury. They also moved to have all issues of fact arising upon the trial so submitted. Both motions were denied. So the case entitled “In the Matter of the Estate of John McClellan, Deceased,” was called for trial. Whereupon the Arkansas claimants moved that their appeal be placed on the calendar for trial independently of the case called. To this the Canadian claimants objected on the following grounds: (1) Because the Arkansas claimants had not filed the required appeal bond; (2) because their pretended appeal was not properly upon the calendar of the present or preceding term; (3) because the order appealed from was not entered when the appeal was taken; (4) because the court was without jurisdiction to hear the appeal, the county court having been without jurisdiction to consider the Arkansas claimants’ petition, for the reason that it was filed in the latter court ;after the matter of Van Eps’ appointment had been removed by appeal to the circuit court; ( 5) because no appeal had been perfected; and (6) because, “at the last trial, after the overruling of the objections above stated, the petitioners James S. McClelland and the persons named as relatives in said petition, and claiming to be parties entitled to administer the estate, consented in open court to the trial of this matter as one proceeding, and that the matter was so tried, and that this is merely a retrial of that matter.” The abstract states that this motion and these objections were both overruled. The Canadian claimants then objected to the administrator appearing or participating in the proceeding, for the reason that he was not a proper party and should be entirely indifferent in a contest between rival claimants to the estate, which objection was overruled, and toe trial proceeded without a jury. At its conclusion the learned circuit court filed its decision in writing finding specifically that none of the claimants was an heir of the decedent; concluding as a matter of law “that the order of said county court appointing William Van Eps, administrator of the estate of John McClellan, deceased, should be reversed, vacated, and set aside, to the end that some person may by said court be appointed administrator of said , estate upon the application of some person or persons authorized to petition therefor”; and directing that judgment be entered accordingly. Thereafter the Canadian and Arkansas claimants made separate applications for a new trial, each of which was denied, and from the orders denying such applications appeals were taken to this court.

It will be observed that at the second trial in the circuit court there remained only four parties, namely, the Canadian claimants, alleged brothers and sisters of the decedent; the Ireland claimants, alleged nieces of the decedent; the Arkansas claimants, alleged sons and grandsons of the decedent; and Van Eps, the administrator, each of whom was defeated by the decision. The Canadian and Arkansas claimants alone appealed, and they alone are in position to challenge the correctness of such decision.

The Canadian claimants contend the court erred in not dismissing the Arkansas claimant’s appeal. The contention is untenable. It is not consistent with their conduct in the circuit court. Before the first trial they consented to have all the petitions heard together, and no reason was shown why the consolidation thus effected should have been set aside. When the Arkansas claimants asked for a separate trial they objected on the ground, among others, of the former agreement to consolidate. If they did not desire to have the Arkansas claimants’ petition heard in connection with their own, they should not have resisted the motion for a separate hearing. Moreover, the course pursued by the learned circuit court is sanctioned by the statute and did not prejudice any substantial rights. The Revised Probate Code of 1903 provides:

"Sec. 88. When a petition praying for letters of administration is filed, the judge must give notice thereof containing the name of the decedent, the name of the applicant for letters, and the day and term of the court at which the application will be heard, which notice must be published by posting or printing in a newspaper, the same as required for notice of the probate of a will.

"Sec. 89. Any person interested may contest the petition by filing written opposition thereto on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file a petition and give the notice required for an original petition, and the court must hear the two petitions together.”

"Sec. 359. When the appeal is on questions of fact, or on questions of both law and fact, the trial in the circuit court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully originated in that court; and such appellate court has the same power to decide the questions of fact which the county court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by a jury of any or all the material questions of fact arising upon the issues between the parties, and such an order must state distinctly and plainly the questions of fact to be tried.”

The Canadian and Ireland claimants’ petitions were certainly pending in the circuit court by reason of the appeal from the order of the county court appointing Van Eps, “on questions of both law and fact.” They were there for trial de novo; the hearing to be conducted in the same manner as if the case and proceedings had originated in the circuit court. Though the Arkansas claimants’ appeal may not have been properly perfected or neither court acquired jurisdiction of their petition as such, nevertheless it was in fact filed in the circuit court, and was amply sufficient to constitute the written opposition of interested persons who at least were authorized to contest the other pending petitions on the ground of the incompetency of the applicants. The right of the Canadian claimants to question Van Eps’ appointment rested alone on their alleged relationship to the decedent. Such relationship was the only issue of fact presented by...