In re the Estate of Mary Elizabeth Randall, Deceased, 7007
| Decision Date | 23 December 1942 |
| Docket Number | 7007 |
| Citation | 132 P.2d 763,64 Idaho 629 |
| Parties | IN THE MATTER OF THE ESTATE OF MARY ELIZABETH RANDALL, DECEASED |
| Court | Idaho Supreme Court |
Rehearing denied January 25, 1943.
Remittitur recalled February 15, 1943.
Rehearing again denied March 17, 1943.
Appeal from the District Court of the Second Judicial District, in and for Latah County. Honorable Ed. S. Elder, presiding judge.
Appeal from a judgment disapproving executrices' final account. Affirmed in part and reversed in part.
Judgment reversed in part, affirmed in part, and cause remanded with instructions. No costs awarded.
Murray Estes and Hamer Budge for appellants.
The Probate Court, while exercising its jurisdiction as a court of probate, does not have jurisdiction to determine questions of title between the estate and persons claiming adversely to it. (Simonton v. Simonton, 33 Idaho 244, p. 259; Miller v. Mitcham, 21 Idaho 741, p. 745; Estate of Blackinton, 29 Idaho 310, p. 322 and 323; Bancroft's Probate Practice, Vol. 1, p. 52, par. 27.)
The mere occupation and use of the common property by one tenant in common does not create the relation of landlord and tenant between him and his co-tenant, nor render him liable for rent. (Washington County Irrigation District v Talboy, 55 Idaho 382; De la Pole v. Lindley, 230 P. 144 (Wash. ); Thrustin v. Brown, 109 P. 784 (Kan.); Kerfoot v. Greenlee, 209 P. 444 (Okla.); Williams v. Sutton, 43 Cal. 65; Shea v. Peters, 268 P. 989 (Ore.); Rodda v. Best, 217 P. 669 (Mont.)
In an action to set aside a gift from a woman to her daughter the burden of proof of undue influence rests upon the party alleging the act of undue influence. (Turner v. Gumber, 19 Idaho 339; In Re King's Estate, 57 P.2d 675 at p. 678 (Wyo.); 28 Cor. Jur. 672; Burton v. Burton, 69 P.2d 307 (Colo.).
In rendering an account a person who has acted as an executor is entitled to have all lawful items of disbursement in his account allowed when such items are supported by his uncontradicted testimony of payment and the items over $ 20.00 are supported by proper vouchers. (Sec. 15-1113, I. C. A.; Sec. 15-1114, I. C. A.)
The acts of an executor, performed prior to revocation of his letters, are valid. (Sec. 15-365, I. C. A.; Sec. 11-403, I. C. A.)
W. F. McNaughton, Wm. S. Lee and J. H. Felton for respondents.
A Probate Court has jurisdiction to determine the title to moneys and personal property which the personal representative claims in his own right. (Stevens v. Superior Court, 99 P. 512 (Cal.); Waterland v. Superior Court, 98 P.2d 211 (Cal.); In re Roach's Estate, 208 Cal. 394, 281 P. 607; In re Nolan's Estate, 108 P.2d 391 (Ariz.); In re Escolle's Estate, 25 P.2d 860 (Cal.).
In the ordinary will contest the allowance of fees and expenses is within the discretion of the court, but it is an abuse of discretion to allow the proponents' fees and expenses to be paid out of the estate where fraud on the part of the proponents is directly involved. (Sec. 15-228, I. C. A.; In re Jones' Estate, 135 P. 293; Minnesota Loan & Trust Co. v. Pettit, et al., 175 N.W. Rep., p. 540; In re McKinney's Estate, 112 Cal. 447, 44 P. 743; Davison v. Sibley, 79 S.E. 855; In re Johnson's Estate, 245 P. 1089.)
It is a well settled rule of law that the rental value of the real estate of a decedent used by the executor for his own personal use shall bee charged against him. (Bancroft's Probate Practice, Vol. 3, p. 1622, Sec. 951; Walls v. Walker, 37 Cal. 424; In re Lewis' Estate, 196 P. 341; In re More's Estate, 54 P. 97; In re Laberee's Estate, 269 P. 861; Bancroft's Probate Practice, p. 1622, note 13.)
Two previous appeals herein culminated in a determination that a will, filed by, and under which appellants (daughters of deceased intestate) had been appointed executrices, was invalid and had been procured by them by fraud and undue influence. (Estate of Randall, 58 Idaho 143, 70 P.2d 389, 60 Idaho 419, 93 P.2d 1.)
Whereupon, respondent Almeron E. Randall (son of deceased) was appointed by the Probate Court administrator of the estate involved. Thereupon, appellants, as retiring executrices, filed their final account in said court for approval. Upon objections interposed thereto, and claim that appellants should have paid rent while occupying the family residence after the mother's death, by respondents, Almeron E. Randall, Arthur W. Randall, son, Ora Randall Johnson, daughter, and Barnard Randall, Wayne Randall, and Dean Randall, grandchildren (children of Alfred B. Randall, a deceased son), the Probate Court after a complete hearing entered judgment approving said account with some modification.
Upon appeal to, and trial de novo in, the District Court, the approving portion of such judgment was reversed, hence the appeal herein.
The court refused to approve the part of appellants' account asking for reimbursement of all fees, expenses, court costs, and attorneys' fees in connection with the previous suits wherein appellants attempted to sustain the validity of the will and in connection with the administering of the estate. Except as noted below, this was correct because the determination that the will in their favor had been procured by their fraud and undue influence deprived appellants of the right to be reimbursed from the estate for such expenses. ( In re Jones Estate, 166 Cal. 147, 135 P. 293; In re McKinney's Estate, 112 Cal. 447, 44 P. 743; In re Arnold's Estate, 121 Cal.App. 247, 8 P.2d 897; Minnesota Loan & Trust Co. v. Pettit, 144 Minn. 244, 175 N.W. 540; Davison v. Sibley, 140 Ga. 707, 79 S.E. 855.)
The filing fee in the Probate Court, costs of publication and notice to creditors, and other items amounting to $ 233.72, covering miscellaneous incidental expenses in the handling of the estate were disallowed because assertedly not supported by proper proof. These expenses would necessarily have been incurred by anyone handling the estate, were not unreasonable, were sufficiently proven, and therefore should have been allowed.
Appellants did not list as assets of the estate $ 56,995.92 of certificates of deposit, with accrued interest thereon of $ 12,060.07, and $ 4,802.36 of negotiable warehouse receipts covering grain on hand at the time of decedent's death, with accrued interest of $ 1,952.76, because they claimed these certificates had been given to them by their mother prior to her death as their own, sole, individual, and separate property and, therefore, did not become or constitute any part of the estate. Respondents contended such gifts were not sufficiently proven and, in any event, were invalid as having been procured by undue influence.
Appellants challenge the jurisdiction of the Probate Court to determine title to or ownership of these certificates of deposit and warehouse receipts, taking the position that an independent action should have been prosecuted in the District Court by the present administrator against them to determine such questions, relying on Miller v. Mitcham, 21 Idaho 741, 123 P. 941; Estate of Blackinton, 29 Idaho 310, 158 P. 492; and Simonton v. Simonton, 33 Idaho 255, 193 P. 386. The first two of these cases involved claims by a third party to real estate, the court holding the Probate Court did not have jurisdiction of such an action because it could not determine title to real property. The Simonton case involved a creditor's claim. Herein, the final accounts of the executrices were submitted by them for approval, and even though after the invalidity of the will had been established they no longer continued executrices as such, it was necessary that they make a final account and that the same be passed upon by the Probate Court. (Secs. 15-1108-11, 15-1115, 15-1118-9, 15-1331, I. C. A.; Stevens v. Superior Court, 155 Cal. 148, 99 P. 512; In re Nolan's Estate, 56 Ariz. 366, 108 P.2d 391.)
The authorities almost uniformly hold a Probate Court has jurisdiction to pass upon what property, in the possession of such executor, should be included in the final account. (Stevens v. Superior Court, supra; In re Fulton's Estate, 188 Cal. 489, 205 P. 681; Coleman v. Crawford, 140 Wash. 117, 248 P. 386; Bauer v. Bauer, 201 Cal. 267, 256 P. 820; In re Kelpsch's Estate, 203 Cal. 613, 265 P. 214; In re Roach's Estate, 208 Cal. 394, 281 P. 607; Security First Nat'l Bank v. King, 46 Wyo. 59, 23 P.2d 851, 90 A. L. R. 125; In re Escolle's Estate, 134 Cal.App. 473, 25 P.2d 860; In re Boggs Estate, 33 Cal.App.2d 30, 90 P.2d 814; Waterland v. Superior Court, 15 Cal.2d 34, 98 P.2d 211; In re Hovland's Estate, 38 Cal.App.2d 439, 101 P.2d 500; note, 90 A. L. R. 134.) There may be said to be some authority to the contrary. (In re Dolenty's Estate, 53 Mont. 33, 161 P. 524; In re Jennings' Estate, 74 Mont. 449, 241 P. 648; note, 90 A. L. R. 139.)
After the mother's death appellants continued to reside in the family home. The court found:
Appellants are heirs of the estate whether they take under the will or under the law of succession. (Sec. 14-103, I. C. A.; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205.) If the will had been valid, they would have taken the entire title, and under the law of succession they still take a child's...
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