In re Randall's Estate

• Decision Date: 10 November 1949
• Docket Number: 7160.
• Citation: 40 N.W.2d 446,77 N.D. 69
• Court: North Dakota Supreme Court

40 N.W.2d 446

77 N.D. 69

In re RANDALLS' ESTATE.

HARRIS v. ERICKSON et al.

No. 7160.

Supreme Court of North Dakota.

November 10, 1949

Rehearing Denied Jan. 9, 1950.

Syllabus by the Court.

1. The county court has no jurisdiction to try title as between the personal representative and a person claiming adversely to the estate.

2. The title to property listed in the inventory in county court as the

property of an estate is only a prima facie title and may be attacked in the district court by other claimants of ownership.

3. Property which prima facie belongs to an estate should be retained in control of the county court until title is determined in a proper action tried in district court.

4. An administrator taking possession of property in his respresentative capacity is not estopped from afterwards claiming said property as his own.

Paul Campbell, Minot, for appellant.

McGee & McGee, Minot, for appellees.

GRIMSON Judge.

This is an appeal from a judgment of the District Court of Ward County. The facts as they appear in the evidence are that Dess Randalls was an unmarried man 68 years of age, that he had lived on and owned the property adjoining that of the appellant in Minot, N. Dak. may years, that they had been closely associated during that time, that he claimed he had no living relatives, that he was in ill health and had been informed by his doctors that if he remained in this climate he would not live long, that he left Minot on January 21 1948 going to Phoenix, Arizona, that prior to leaving he had taken some of his personal effects, including a bunch of keys, to the home of the appellant to keep them for him, that appellant claims he then asked 'What if you don't come back?' and that Randalls answered 'You keep everything,' that Randalls died in Phoenix February 2l, 1948. Upon learning of the death of Randalls, appellant on February 28, 1948, petitioned for letters of special administration of his estate citing the State's Attorney and all unknown persons interested in the estate as respondents on the theory there were no living relatives. Arrangements were made with the county judge according to Sec. 57-3728, N.D.R.C.1943, to open the safety deposit box rented by Randalls in the American State Bank, Minot, North Dakota. The key to said box, and the only key, was amongst the keys turned over by Randalls to the appellant. On March 1st appellant was appointed Special Administrator of Randalls' Estate. On March 2nd the contents of the safety deposit box were examined and found to consist of currency in the sum of $2,997. This was deposited in the bank in the name of the appellant as special administrator but notice was given by the appellant that he claimed to own this money by virtue of a gift causa morits. He used some of the fund to pay funeral and other expenses. Relatives of Randalls were found and made their appearance in the matter. The petition of appellant for appointment as administrator was withdrawn and the appointment of the respondent H. M. Erickson, as administrator was stipulated. Thereafter the appellant filed his report as special administrator claiming the currency heretofore mentioned as his own property and refusing to turn it over to the administrator. Objections were filed by the administrator. A hearing was had upon that report. The county court found the fund to be an asset of the estate and ordered appellant to turn over that money to the respondent administrator. Appellant then took an appeal to the district court which affirmed the decision of the county court and entered judgment in accordance therewith. From that judgment this appeal is taken.

The real question here at issue is with regard to the ownership and handling of the Sec. 2,977 fund. The appellant claims the county court had jurisdiction to pass upon the ownership on the hearing of his report as Special Administrator and should have decided he was the owner. The respondent denies such jurisdiction in the county court and contends title to the fund must be determined in a proper action in district court.

In the case of Arnegaard v. Arnegaard, 7 N.D. 475, 75 N.W 797, 41 L.R.A. 258, this court held that: 'A county court, acting as a probate court, has no jurisdiction to try a question of title to property, as between the personal representative of a decedent, and a person claiming in hostility to the estate.'

This has been followed by many cases affirming that principle. See Gjerstadangen v. Van Duzen & Co., 7 N.D. 612, 76 N.W. 233, 66 Am.St.Rep. 679; Finn v. Walsh, 19 N.D. 61, 121 N.W. 766; Muhlhauser v. Becker, 74 N.D. 103, 20 N.W.2d 353; In Goodin v. Casselman, 51 N.D. 543, 200 N.W. 94, 97, this court said: 'The probate court cannot try title to property.'

This seems to be the general rule also adopted in other jurisdictions. See 34 C.J.S., Executors and Administrators, Sec. 840, p. 968; 21 C.J.S., Courts, Sec. 303, p. 547, 1 Church New Probate Law and Practice 314.

The appellant contends that there is an exception to this rule in cases where the administrator himself claims title to the property. He claims that in such cases upon the filing of the administrator's final report the county court in settling his account has jurisdiction to pass upon the question of title to the property in the estate, which he claims in his own right, as an incident to its exclusive jurisdiction to settle the account of executors, administrators and guardians. Section 111, Constitution of North Dakota. He cites in re Wiley's Estate, 150 Neb. 898, 36 N.W.2d 483, 486, where the Nebraska Court holds, 'County courts, in carrying out their exclusive original jurisdiction in matters relating to the administration of the estates of deceased persons, have jurisdiction to determine title to personal property claimed by representatives of decedents' estates.'

In the annotation on this subject in 90 A.L.R. 134 that is said to be the majority rule and supported by citations from California, Illinois, Maryland, Missouri, New Jersey, New York, Pennsylvania, Washington, and Wyoming. Courts in other states, however, have held that the probate court has no jurisdiction to determine title, even in such a case. Amongst whom are Kansas, Michigan, Montana, Texas, Louisiana and Alabama.

In the case of Stevens v. Superior Court, 155 Cal. 148, 99 [77 N.D. 74] P. 512, 516, the reason given for such an exception to the general rule is that where the administrator himself claims property there is no one to bring suit for the determination of the title. The administrator cannot be compelled to bring suit against himself and the heirs are given no authority to do so. Therefore the court says: 'It seems clear to us that the probate court must necessarily have the power to incidentally try and determine such an issue between the executor or administrator and the estate in the matter of the settlement of his exhibits and accounts.'

The supreme court of South Dakota, however, in just such a situation held the heirs could bring an action in circuit court for the recovery of the property claimed and not accounted for by the administrator. Song v. Song, 64 S.D. 555, 268 N.W. 905. See also in re Dolenty's Estate, 53 Mont. 33, 161 P. 524, 529.

Moreover, recent California cases have limited the claimed exception to the rule. In Waterland v. Superior Court in and for Sacramento County, 15 Cal.2d 34, 91 P.2d 220, 221, the administrator who claimed certain property and refused to account to the estate therefor, had resigned. The court said: 'We are of the opinion that when an executor has resigned and his successor has qualified, that in contemplation of law, he is no longer executor of the estate, but on the contrary that his individual claim to property in good faith must then be determined in another tribunal of competent jurisdiction, and that the probate court loses its jurisdiction to try title to such property. The reason for that conclusion, as expressed by the authorities is that the obstacle preventing an executor from bringing an action against himself since he may not become both a plaintiff and a defendant in the same action, has been removed by his resignation and it becomes the duty of the acting executor or administrator to then bring suit against him in a proper court to determine the title.'

In the instant case as soon as the respondent, Erickson, was appointed and qualified as general administrator the power and duties of the appellant as special administrator ceased, Sec. 30-0906, NDRC 1943. He was thereafter under no disability to bring suit for the determination of the title to the fund involved. In re Jennings' Estate, 74 Mont. 449, 241 P. 648, 654. The reason given for such an exception, if any, to the general rule does not exist as far as this case is concerned. The rule laid down in Arnegaard case, supra, applies whether or not an exception to that rule would have existed had the plaintiff still been special administrator.

The county court had no jurisdiction to try title to this fund. The district Court, on appeal, had only the same jurisdiction the county court had. See Arnegaard v. Arnegaard, supra, Muhlhauser v. Becker, supra, Stewart v. Lohr, 1 Wash. 341, 25 P. 457, 22 Am.St.Rep. 150. A new proceeding must be brought in the district court to determine the title to this fund.

As a necessary corollary to the rule that the county court cannot try title it follows that the inventory shows only the prima facie title in the estate of the property included. In 33 C.J.S., Executors and Administrators, Sec. 138, p. 1093 the principle is laid down that: 'The inventory and appraisal are prima facie, but not conclusive, evidence of the value and ownership of the items of property included. The listing of property, or failure to...