In re Rodgers' Estate
| Decision Date | 25 June 1923 |
| Docket Number | 5234. |
| Citation | 217 P. 678,68 Mont. 46 |
| Parties | IN RE RODGERS' ESTATE. |
| Court | Montana Supreme Court |
Appeal from District Court, Prairie County; Stanley E. Felt, Judge.
Final accounting by E. W. Thomas, executor of the estate of Patrick Rodgers, deceased. From an order refusing to allow certain claims for interest and allowing certain offsets to the account, William Rodgers and wife appeal. Modified and affirmed.
P. F Leonard, of Miles City, for appellants.
Thomas M. Murn, of Terry, for respondent.
For a number of years prior to September 18, 1917, Patrick Rodgers was a resident of Prairie county, and at least a portion of the time was employed by one E. W. Thomas, who was extensively engaged in the cattle business in Eastern Montana. Rodgers appears to have been thrifty, for he had accumulated some 60 head of cattle, which were run with the Thomas bands.
On the date above mentioned, Rodgers entered the military service of the United States by voluntary enlistment, and on the same day made a will in which he left all of his property to his aged father and mother, who lived in Ireland, and named Thomas as his executor. Thereafter he went overseas with the American Expeditionary Forces, and on June 22, 1918, died in France as the result of wounds received in action. Upon his enlistment he left his cattle in the keeping of Thomas, who agreed to look after them. Thomas ran the cattle with his own during the winter of 1917-1918, and in the early summer of the latter year, pursuant to a letter which he received from Rodgers, purchased them and allowed the sum of $65 per head therefor.
It is fairly inferable from the record that Rodgers had directed Thomas to place the selling price of the cattle on deposit to his credit in the Miles City National Bank of Miles City. However, Thomas did not do this, but kept the cattle as his own, and retained the selling price without segregating it from his own funds, and used it in connection with his business.
On December 4, 1918, Thomas filed a petition for the probate of the Rodgers will, and such proceedings were had thereunder that on July 17, 1919, the will was admitted to probate and Thomas appointed the executor thereof. Thomas immediately qualified by taking the necessary oath and filing a bond as required by the order of the court, and on or about July 17 1919, paid all the debts of the deceased, together with the expenses of administration. Shortly thereafter, by authority of the court, he sent to the legatees named in the will the sum of $490; the total expenditures thus made amounting to $1,438.20. On July 25, 1919, notice to creditors was duly published to present their claims to the executor within four months from that date.
In the petition for probate of the will the property of the estate is described and valued as follows:
"Sale price of about 60 head of cattle sold to E. W. Thomas at $65 per head, $3,900; one saddle horse, $50; one sheep wagon, $50; total, $4,000."
On July 17, 1919, appraisers of the estate were appointed, but they did not act, and no inventory and appraisement of the estate were made until new appraisers were appointed by the court on October 8, 1921. Those appraisers made their report on the same day of their appointment, showing the property of the estate to consist of "moneys belonging to said deceased which have come into the hands of the executor, $1,438.20; money due the estate from E. W. Thomas, $1,941.80," and containing the further recital that the last-mentioned sum "has never been paid into the funds of the said estate and is a balance due on the purchase price of certain cattle owned by the said deceased which were purchased by the said E. W. Thomas from deceased during his lifetime." On the same day that the inventory and appraisement were returned into court, Thomas rendered and filed his first account, reciting, among other things, that he had received the sum of $1,438.20, all of which had been paid out; also "that at the time of the death of the said deceased, E. W. Thomas was indebted to him in the sum of $3,380, and that there now remains due and owing a balance of $1,941.80, which the said E. W. Thomas has not paid to the said estate."
On November 4, 1921, an order was made allowing and settling the above account, but subsequently, in February, 1922, on the petition of William and Bridget Rodgers, father and mother of the deceased and the legatees named in the will, the account was reopened and the executor ordered to "file a new, full, complete and final accounting of the said estate from the time of his appointment as executor and of the condition thereof and of all his actions and doings as such executor." Pursuant to this order, on May 1, 1922, Thomas filed a supplemental account showing that the estate was ready to be closed and that the property belonging to the same consisted of the balance of the account which he owed, and also the saddle horse and sheep wagon above mentioned. In this account he also set up a claim of $364 alleged to be due him from the deceased for running the cattle of the deceased during the winter of 1917-1918, and $20.44 for taxes paid on the cattle of deceased in November, 1917, and filed therewith a creditor's claim for that amount. This creditor's claim was not acted upon by the judge, but the amount thereof was subsequently allowed to Thomas, as hereinafter shown. To the allowance of this account the legatees William and Bridget Rodgers filed certain objections by which they sought to have the executor Thomas charged with interest on the purchase price of the cattle from the time he took them over in June, 1918, until the time of his appointment as executor on July 17, 1919, and from the latter date down to the time of distribution, and also to have the court disallow Thomas' claim for running the cattle for the winter of 1917-1918, and the amount alleged to have been paid for taxes on the cattle in November, 1917. After a hearing, the court held that Thomas was not liable to the estate for any amount of interest, and allowed the claim for running the cattle and for taxes paid, amounting to $384.44, as an offset against the amount due from him to the estate, thereby reducing the same to $1,557.36. From the decree settling this account the objectors have appealed to this court, and specify as errors the refusal of the court to require the payment of interest by Thomas and the allowance of his claim of $384.44 as above set out.
The only material facts developed at the hearing, in addition to those above recited, were that at the time of Thomas' appointment as executor in 1918, and for some time subsequent thereto, he was reasonably worth a sum in excess of...
To continue reading
Request your trial