In re Owens' Estate

• Citation: 30 Utah 351,85 P. 277
• Decision Date: 19 April 1906
• Docket Number: 1717
• Parties: In re OWENS' ESTATE. v. JOHNSON ARMSTRONG et al
• Court: Supreme Court of Utah

85 P. 277

30 Utah 351

In re OWENS' ESTATE.

ARMSTRONG et al v. JOHNSON

No. 1717

Supreme Court of Utah

April 19, 1906

APPEAL from District Court, Third District; Geo. G. Armstrong Judge.

Petition by Charles W. Johnson for letters of administration on the estate of William George Owens, deceased. Subsequently a petition was filed by Margaret Williams and another praying that S. B. Armstrong be appointed administrator. From an order granting letters to Johnson, Williams and Armstrong appeal.

REVERSED AND REMANDED.

H. O Shephard and S. P. Armstrong for appellants.

APPELLANT'S POINTS.

A creditor, is not entitled to letters if any of the relatives will accept. It is incumbent on a creditor, applying, to show that the relatives have expressly refused to accept, or at least have impliedly refused by neglect to apply within a reasonable time. (Haxall v. Lee, 2 Leigh (Va.) 267; Ritchie v. McAustin, 1 Hayw. L. & Eq. [N. Car.] 257; Hill v. Alspaugh, 72 N. Car. 403.)

An officer of a corporation, to which deceased is indebted, is not a creditor within the statute, and has no right to letters, simply because he is such officer. (Glenn v Reid, 74 Md. 241; Myers v. Cann, 95 Ga. 385; Georgetown College v. Brown, 34 Md. 455; Rev. Stat. 1898, sec. 3812, par. 6; sec. 3812, par. 6, and sec. 3815, par. 2; Estate of Beech, 63 Cal. 459.)

Unless specially authorized by its charter a corporation cannot act as administrator. (Myers v. Cann, 95 Ga. 385; Re Thompson's Estate, 33 Barb. [N.Y.] 334-5; Fidelity Co. v. Niven, 5 Houst. [Del.] 165; 1 Cooley's Black Com., 477; 1 Mor. Priv. Corp., sec. 357.)

Where third persons have a claim de jure that a power be exercised by the court, "may" becomes mandatory and the court cannot withhold the order. (Law v. Dunham, 61 Me. 568; Brawley v. Mitchell, 92 Wis. 672; Turnpike Co. v. Miller, 5 Johns. Ch. 113; Tarver v. Tallapoosa, 17 Ala. 5312; People v. Supervisors, 56 Barb. 454; Reynolds v. Common Council, 140 N.Y. 306; Mason v. Fearson, 9 How. 259; Blackwell's Case, 1 Vern. 153; Johnson v. Pate, 95 N. Car. 70.)

The next of kin must be appointed if they apply within the time allowed by statute. (Cobb v. Newcomb, 19 Pick. 337; Mullanphy v. County Court, 6 Mo. 566; Munsey v. Webster, 24 N.H. [5 Foster] 126.)

The courts hold that the person entitled has the right to designate some other person, and that the court has no discretion. (Little v. Berry, 94 N. Car. 436-7; Williams v. Neville, 108 N. Car. 564; Shamo's Appeal, 57 Pa. 359; Neidig's Estate, 183 Pa. 495-7-8; Headman v. Rose, 63 Ga. 465; Strong v. Dignan, 207 Ill. 391-4.)

Thompson & Gibson for respondent.

RESPONDENT'S POINTS.

Suggesting, though not insisting, that acceptance of administration (sec. 3813) means a personal acceptance and not a mere request that another be appointed, we however insist that a creditor is entitled to administer in preference to a relative who by express provision of statute is not only not competent but not entitled.

We have not cited numerous authorities on these questions because the statutory provisions here in question are peculiar to this state. (3 Abbott's Probate Law [Comparative Code] sec. 425.)

Where there is nothing in the connection of the language or in the sense or policy of the provision to require an unusual interpretation, its use is merely permissive and discretionary. (Eslinger v. Pratt, 14 Utah 107; In re Healy's Estate, 122 Cal. 162, 54 P. 736.)

While it does not appear that said corporation is not authorized by its charter to act as administrator still assuming it is not how else could it apply except through its officers? Otherwise being given a right it would have no way of enforcing it. (Bowen v. Stewart [Ind.], 26 N.E. 168, 28 N.E. 73.)

Assuming again that the corporation was entitled though not competent administration may be granted to a competent person, although not otherwise entitled to the same, at the written request of the person entitled filed in the court. (R. S. 1898, sec. 3812, subdiv. 6; Estate of John Tasanen, 25 Utah 397.)

BARTCH, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

BARTCH, C. J.

This was a proceeding for the appointment of an administrator to administer the estate of William George Owens, who died intestate March 30, 1905, at Los Angeles, California, then a resident of Salt Lake City, Utah. On June 27, 1905, the respondent filed a petition in the district court praying that letters of administration be issued to him. In the petition he alleged that the next of kin of the deceased were unknown; that the petitioner was the secretary and treasurer of a certain real estate company, a corporation; and that the corporation was a creditor of the deceased. On June 28, 1905, the appellant, Margaret Williams, a sister of the deceased, residing at Swansea, Wales, also filed a petition, in which the appellant Armstrong joined, praying that Armstrong be appointed as administrator. In this petition, it is alleged that the next of kin of the deceased are the petitioner, another sister, a brother, and a nephew. The two petitions were considered and heard together, and at the hearing, notwithstanding the petitioner Margaret Williams had previously filed objections based upon the record and files in the case, to the appointment of Johnson, the court appointed him, and ordered letters of administration to be issued to him. Thereupon this appeal was prosecuted, and specifications of error have been predicated upon the action of the court in the premises.

The appellant insists that Margaret Williams, sister of the deceased, though a non-resident, had the right, under our statutes, to have the person, whose appointment she had requested, appointed as administrator, his fitness for the position not being questioned. The statute, in section 3812, Revised Statutes 1898, provides:

"Administration of the estate of a person dying intestate, must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof; and they are, respectively, entitled thereto in the following order: (1) The surviving husband or wife. (2) The children. (3) The father or mother. (4) The brothers or sisters. (5) The grandchildren. (6) The next of kin. Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court."

Section 3813, Rev. St. 1898, so far as material here, reads:

"If none of said relatives or their guardians will accept, then the creditors shall be entitled to letters, but when a creditor is applying, the court may, in its discretion, at the request of another creditor, grant letters to any other person legally competent. If a dispute arises as to relationship between applicants, or if there is any other good and sufficient reason, the court may appoint any competent person."

Section 3814 reads:

"Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves."

Under section 3815 no person is competent to serve as administrator or administratrix who is

"Not a bona fide resident of the state; but if the person entitled to serve is not a resident of the state he may request the court or judge to appoint a resident of the state to serve as administrator, and such person may be appointed."

Reading and construing these several provisions of the statute together, the intention of the Legislature is manifest that when a person dies intestate, his relatives or next of kin when not incompetent under the provisions of section 3815, shall be entitled to administer the decedent's estate in preference to a stranger even though he be a creditor, and especially is this true where a mere stranger seeks an appointment as administrator. Such intention seems the more clear from a consideration of the provision in section 3814, which requires letters of administration to be granted to any other applicant, when such persons as are entitled to them "fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves." If a stranger or a creditor could be appointed administrator, notwithstanding that a person entitled appeared within three months from the decedent's death, and asked for letters, then this provision would be but useless verbiage having no effect. Familiar rules forbid a construction which will render meaningless and ineffective, words, phrases, or clauses in an enactment, when some other reasonable interpretation will render them effective and declare the legislative intent. It is only when none of those entitled will accept the appointment, or when no one of them appears within three months of the death of the decedent that the court is empowered to appoint a creditor either on his own petition, or at the request of another creditor. One of the principal reasons for thus preferring relatives and next of kin, doubtless, is that they, being entitled to succeed to what remains of the estate, after the discharge of the debts and obligations, are the most deeply interested in a proper administration of it, and in preserving it. The policy of thus preferring relatives and next of kin, over creditors, in the order in which their interests naturally appear, seems to be suggested alike by sound reason and justice. The creditor is interested only to the extent of having his claim paid and, when that is done, his interest in the estate ceases, while the interest of...