In re Raleigh's Estate

• Decision Date: 17 September 1915
• Citation: 48 Utah 128,158 P. 705
• Parties: In re RALEIGH'S ESTATE
• Court: Utah Supreme Court

158 P. 705

48 Utah 128

In re RALEIGH'S ESTATE

Supreme Court of Utah

September 17, 1915

On Petition for Rehearing, June 30, 1916.

Appeal from District Court, Third District; Hon. F. C. Loofbourow Judge.

Proceedings for final accounting by Alfred Solomon, surviving executor of the estate of Alonze H. Raleigh, deceased.

From an order sustaining objections to the account and setting aside former orders on intermediate accounts, the executor appeals.

REVERSED and remanded with directions.

H. S Tanner and Young & Moyle, for appellant Solomon.

Jones Brown & Judd, for respondent Rumel.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

On May 13, 1901, one Alonzo H. Raleigh died in Salt Lake county, Utah, leaving a last will and testament and a large number of heirs. In said will the decedent nominated as executors one William Asper and one Alfred Solomon. When the will was presented for probate to the probate court of Salt Lake county, some of the heirs of the deceased, pursuant to the statute, filed objections to the appointment of said Asper and said Solomon as executors. On November 9, 1901, the will was duly admitted to probate. The objections filed as aforesaid, after a hearing by the probate court, were also overruled, and said Asper and said Solomon were duly appointed joint executors by said probate court, as provided in said will. Letters testamentary were duly issued to said executors, and they forthwith entered upon their duties as such. Our statute (Comp. Laws 1907, Sec. 3941) provides:

"Six months after his appointment, also within thirty days after the expiration of the time within which creditors must present their claims, and at any other time when required by the court, either upon its own motion or upon the application of any person interested in the estate, every executor or administrator must render for the information of the court an account of his administration, under oath, showing the sums of money received by him and from what sources, the amounts expended by him, a statement of all claims presented against the estate and the names of the claimants, and all other matters necessary to show the condition of its affairs."

Pursuant to the foregoing section, on December 6, 1902, the executors filed what is called their first account. Section 3942 provides:

"When any account is rendered for settlement, the court or clerk must appoint a day for the settlement thereof, of which the clerk must give notice."

The record shows that the account presented as aforesaid was referred to a referee for audit, and that on January 26, 1903, the account was duly allowed and settled by the probate court of Salt Lake County. The order of the court settling the account seems to be full and regular. Some time after the approval of said account proceedings were instituted by some of the heirs of the deceased to remove the executors, but upon a hearing the objections were overruled, and all of the acts of the executors which were complained of were duly sustained and approved by the probate court. On July 5, 1905, the executors filed their second account. Objections were filed to that account by some of those interested in the estate. The objectors were represented by counsel. In September, 1905, an amended account was filed, and objections were also filed to the amended account by the same objectors who had objected to the account filed on July 5th as aforesaid. All the foregoing objections were duly heard by the probate court of Salt Lake County, and on October 14, 1905, the objections were overruled, and the account was settled and approved by said court. After the filing, hearing and approval of the second account, it appears that William Asper, one of the executors, died. On January 5, 1912, Mr. Solomon, the surviving executor, filed his final account. Objections were again filed to that account by the same, or atleast some of the same, persons who had objected to the preceding accounts. New attorneys were called into the case representing the objectors, and they also filed what are called supplemental objections to said final account. The original objections to the final account are very general, and need no special consideration. The supplementary objections, so called, after reciting all the former steps that had been taken during the administration, including the filing of the preceding accounts and the action of the court thereon, proceed as follows:

"That your petitioners are advised and believe and therefore aver that there are various and sundry errors, omissions, and misstatements in the reports and accounts of said executors, and that there are various and sundry items of personal property, including cash and stocks which are the property of said estate and the parties entitled under the last will and testament of the deceased, including your petitioners, which said properties have never been accounted for, nor reported to this court. That the several items of properties so referred to are of the approximate value of $ 1,800.

"That your petitioners are advised and believe, and therefore aver, that the management of said estate, by said executors has been at all times herein mentioned improvident and wasteful, and that they have mismanaged and dissipated a large portion of the assets of said estate, and have failed to render a true and accurate account and report of their administration upon said estate."

It is also made to appear from said supplemental objections that after the filing of the first objections to the said final account the probate court appointed one Orson P. Rumel as referee to examine said final account; that said Rumel had done so, and had filed his report, from which it was made to appear that he had gone back over the entire accounts and doings of said executors, regardless of the filing of the two preceding accounts which had been filed by them, and which, after contests and hearings, had been duly allowed, settled, and approved by the probate court of Salt Lake County. A demurrer was interposed to the supplemental objections as being insufficient to authorize the court to re-examine the preceding accounts and the settlement thereof, which demurrer was overruled. It should be stated here that the first account was settled and approved by the Hon. W. C. Hall, and the second one by the Hon. George G. Armstrong, both of whom were district judges of the district court of Salt Lake County, while the hearing upon the final account and the order or judgment now under consideration were had and made by Hon. Frederick C. Loofbourow, also one of the district judges of the district court of Salt Lake County. Much evidence pro and con was produced upon the last objections which it is not necessary, however, to refer to in detail. It must suffice to say that the court, over the objections of the executor, permitted the objectors to go into the preceding accounts and to re-examine the same as though they had not been considered, heard, and duly approved by the two preceding district court judges who presided over the probate court at the times when the accounts were presented. After hearing the evidence the court made findings among which are the following:

"It appearing to the satisfaction of the court from the files, records, and all of the evidence therein that the former reports and accounts of said executors, hereinbefore described, were not true and correct, and contained many errors, and that the last and final report as rendered by said executors is not a true and correct account, and statement of the accounts, and assets of the said estate, and that all of the assets have not been accounted for by said executors, and that said reports and accounts were made and rendered either in gross negligence or fraud; the same being in fraud of the rights of the beneficiaries and parties entitled to said estate."

Upon the allegations made in the supplemental objections filed, which we have set forth herein, and upon the foregoing findings, the court vacated and set aside the former orders or judgments by which the two preceding accounts were settled and approved, and entered findings in which the specific items now disallowed the executor are set forth, and for which the executors are required to account, and upon such findings the court entered a personal judgment against the living, as well as against the deceased, executor, for the entire amount found due, with interest thereon at the legal rate, dating back a large number of years.

The proceedings that arose pending the administration of the estate since 1901 are very voluminous, so much so that we cannot even set them forth in substance. For reasons hereinafter appearing, however, it will not be necessary to refer to those matters specifically.

Counsel for the surviving executor have assigned a large number of errors, and such as we deem material we shall now proceed to consider.

One of the principal assignments relates to the overruling of the demurrer which was interposed to the supplemental objections and to the overruling of the executors' objections to the court's re-examination of the two preceding accounts which had been settled and approved after contest, as before stated. It would seem that under ordinary conditions one would not have great difficulty in determining that when a court of competent jurisdiction, in the regular way especially after contest, has settled and approved an administrator's or executor's account, such settlement would be conclusive until the same was, by a court of equity, set aside for fraud or mistake in a proper proceeding instituted for that purpose. In this jurisdiction, however, there is a statute, the provisions of which, apparently at least, are in direct...