In re Rogers' Estate

• Decision Date: 23 January 1930
• Docket Number: 4868
• Parties: In re ROGERS' ESTATE. v. NICOLS ROGERS
• Court: Utah Supreme Court

284 P. 992

75 Utah 290

In re ROGERS' ESTATE.

ROGERS v. NICOLS

No. 4868

Supreme Court of Utah

January 23, 1930

Appeal from District Court, Third District, Salt Lake County; D. W Moffat, Judge.

In the matter of the estate of Arthur L. Rogers, deceased. From a decree of distribution to Katie S. Rogers, administratrix with the will annexed, and Eoline C. Rogers Nicols, and a judgment finding the administratrix guilty of contempt of court, she appeals.

REVERSED AND REMANDED.

C. E Norton, of Salt Lake City, for appellant.

H. C Allen, of Salt Lake City, for respondent.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

ELIAS HANSEN, J.

This appeal is prosecuted by Katie S. Rogers, administratrix with the will annexed of the estate of Arthur L. Rogers, deceased, from two judgments made and entered by the probate division of the district court of Salt Lake county, Utah. Both of the judgments appealed from were entered in the course of probate proceedings of the estate of Arthur L. Rogers, deceased. One of the judgments appealed from is a decree of distribution; the other is a judgment finding Katie S. Rogers guilty of contempt of court, and directing that she be imprisoned in the county jail of Salt Lake county, Utah, for a period of 30 days or until she executes a deed conveying to Cornelius West the following described tract of land situate in Salt Lake county, Utah: Commencing at the southeast corner of lot 2, block 32, plat B, Salt Lake City survey, and running thence west 1 1/2 rods, thence north 10 rods, thence east 1 1/2 rods, thence south 10 rods to the place of beginning.

The record brought here for review shows that the following proceedings were had in the court below. On April 20, 1925, a petition for the probate of the will of Arthur L. Rogers, deceased, was filed. On May 1, 1925, the will of Arthur L. Rogers, deceased, was admitted to probate. H. J. Fitzgerald, who was named in the will as executor, was by the court appointed executor, and letters testamentary were issued to him. The will so admitted to probate devised and bequeathed to Katie S. Rogers all of the property belonging to Arthur L. Rogers at the time of his death. On September 30, 1926, the appellant, Katie S. Rogers, filed a petition for a family allowance and for summary distribution to her of the whole of the estate. The time for hearing the petition was continued from time to time, apparently because no inventory and appraisement had been filed in the cause and because the executor had not rendered any account. On November 3, 1926, an inventory and appraisement was filed from which it appears that the estate of the deceased consisted of $ 70.25 in cash and an undivided one-half interest, valued at $ 600, in a contract for the sale of the tract of land heretofore described in this opinion. On November 26, 1926, H. J. Fitzgerald, the executor, filed his first and final account in the cause. Attached to the account and made a part thereof is a copy of a contract whereby, under date of January 4, 1924, Arthur L. Rogers agreed to sell and Cornelius West agreed to buy, for the sum of $ 1,500, the tract of land above described. The contract recites that $ 100 was paid on the contract price at the time the contract was entered into. The remainder of the purchase price was made payable by the contract at the rate of $ 20 per month. All deferred payments bore interest at the rate of 7 per cent per annum. There is also attached to the account and made a part thereof a copy of an agreement which reads as follows:

"This agreement made this 5th day of February A. D. 1924 by and between Arthur L. Rogers of Salt Lake City, Utah, first party and Eoline C. Rogers of Salt Lake City, Utah, second party:

"Whereas first party is the legal owner and holder of the property herein described, to wit: The house at 637 East 5th South Street, Salt Lake City, Utah.

"Commencing at the Southeast corner Lot Two (2), Block 32, Plat 'B' Salt Lake City Survey, and running thence West 1-1/2 rods, thence North 10 rods, thence East 1-1/2 rods, thence South 10 rods, to the point of beginning, together with all improvements thereon.

"And second party is the owner of an equitable interest in said property to the value of $ 750.00 being the amount paid by second party on account of the purchase price of said property.

"And whereas the party of the first part had entered into a contract of sale for said property to one Con West for the sum of $ 1500.00 which contract provides for the payment of One Hundred dollars in cash and the sum of $ 20.00 on the first day of each and every month with interest on deferred payments at the rate of 7 per cent per annum.

"And whereas said second party is now in possession of said premises.

"Now therefore in consideration of the sum of $ 1.00 each paid to the other and the Covenants herein contained the said first party agrees to pay one-half (1/2) of all sums received by him on account of said sale and contract; said payments to be made by first party to second party as same is received under said contract, and the party of the second part hereby agrees to surrender possession and deliver up said premises to said Con West on the first day of March 1924.

"Witness the hands of said parties the day and year first above written.

"A. L. Rogers.

"Eoline C. Rogers."

"Witness: H. J. Fitzgerald.

The account also contains a statement of moneys received and expended by the executor. It is recited in the account that Arthur L. Rogers was, at the time of his death, the owner of an undivided one-half interest in the contract of sale between him and Cornelius West. Under date of March 1, 1927, a decree settling the final account of the executor and of summary distribution was made and filed in the cause. By the decree of summary distribution, an undivided one-half interest in the contract between Arthur L. Rogers and Cornelius West was distributed to Katie S. Rogers, the widow of the deceased, and the other undivided one-half interest was distributed to Mrs. Eoline C. Rogers Nicols, the former wife of the deceased. On November 19, 1927, the appellant, Katie H. Rogers, filed a petition in the matter of the Estate of Arthur L. Rogers, deceased, in which petition, omitting the title of the court and cause, it is alleged:

"Now comes Katie S. Rogers and respectfully shows:

"That on October 16, 1927, H. J. Fizgerald, the sole Executor of the last will and testament of said Arthur L. Rogers, deceased, died, and the estate of the first testator is left unadministered, and unfinished, in these particulars:

"1. The final account and the decree does not state the required facts under Section 7644, Compiled Laws of Utah, 1917, in that it does not show that the expenses of the last illness, funeral charges, and expenses of administration has been paid before distribution was ordered;

"2. The final distribution has not been made as provided by said order of March 1, 1927, or otherwise, or at all, so as to clear the title to said real estate or to give possession of said personal property;

"3. That all of the records and files herein are hereby made a part of this petition.

"Wherefore petitioner prays that letters of administration with will annexed be issued to your petitioner, Katie S. Rogers, as provided by Section 7582, Compiled Laws of Utah, 1917, and according to the practice of this court."

Under date of December 2, 1927, Katie S. Rogers was appointed administratrix with the will annexed of the estate of Arthur L. Rogers, deceased. She qualified as such administratrix, and letters of administration were issued to her. Under date of May 2, 1928, Katie S. Rogers filed her first and final account and petitioned for summary distribution. In her account and petition for distribution she prayed that the funeral expenses of Authur L. Rogers and the cost of the administration of his estate be paid out of the moneys derived from the sale of the real property by Arthur L. Rogers to Cornelius West, and that the money remaining after such expenses had been paid be divided equally between her and Eoline C. Rogers Nicols. On May 25, 1928, Eoline C. Rogers Nicols filed in the cause an objection to the final account. In the objection she alleges that she is the owner of an undivided one-half interest in the contract between Arthur L. Rogers and Cornelius West. She objects to the application of any of the $ 750 which she claims in the property sold to West being applied to the payment of the funeral expenses of Arthur L. Rogers, or to the payment of the cost of the administration of his estate. On December 14, 1928, a court order was signed by the court and filed in the cause. Omitting the title of the court and cause, it reads as follows:

"This matter coming on to be heard upon the objections to the Final Report, filed by Eoline C. Nicols, formerly Eoline C. Rogers to the final report of the administratrix heretofore filed herein, and the court having heard the evidence and argument of counsel and being fully advised in the premises, doth find that prior to the death of Arthur L. Rogers, and on to wit, the 5th day of February, 1924, the said Arthur L. Rogers, executed and delivered to the said Eoline C. Rogers, an agreement reciting the fact that the said Eoline C. Rogers was the owner of an undivided one-half interest in and to the property described in said objection and agreement and that the said Eoline C. Rogers was to receive one-half of the proceeds from the sale of said property, which had already been made, the contract of sale having been deposited with the Tracy Loan & Trust Company for collection.

"The Court further says the said Eoline C. Nichols, formerly Eoline C. Rogers, is the...