Kent v. Dalrymple

• Decision Date: 01 May 1913
• Parties: ADELADE KENT et al., Appellants, v. H. H. DALRYMPLE and A. B. DALRYMPLE, Administrators of the Estate of ORSON DALRYMPLE, Deceased, Respondents
• Court: Idaho Supreme Court

132 P. 301

23 Idaho 694

ADELADE KENT et al., Appellants, v. H. H. DALRYMPLE and A. B. DALRYMPLE, Administrators of the Estate of ORSON DALRYMPLE, Deceased, Respondents

Supreme Court of Idaho

May 1, 1913

APPEAL from the District Court of the Fifth Judicial District for Bear Lake County. Hon. J. M. Stevens, Presiding Judge.

An appeal from the judgment of the district court affirming the judgment of the probate court in refusing to consider objections to the report of the administrators of an estate. Reversed.

Judgment reversed. Costs awarded to appellants.

T. L Glenn and John A. Bagley, for Appellant.

The statute, under the constitution, grants to the district court appellate jurisdiction to retry only the same issues of law and fact as were heard and determined by the probate court. ( Estate of McVay, 14 Idaho 68, 93 P. 31.)

When exceptions and objections are filed to the allowance of a claim against the estate, the issue thus presented should be heard and tried by the probate court, and until heard and tried is pending in the probate court. (Estate of Coryell 16 Idaho 202, 101 P. 723.)

The probate court refused to consider the objections filed and refused, and failed to consider or approve the alleged vouchers, and allowed and approved the report without investigating it or knowing whether it was correct or not. ( Estate of Rose, 63 Cal. 349.)

Clark &amp Budge, for Respondents.

"It must be assumed that the legislature, when it passed the act providing for a trial 'de novo' in the district court, on appeal from the probate court in probate matters, was acting within the purview of the constitution, and did not intend to go any further than to provide for the exercise of the 'appellate jurisdiction' of the district court." (Estate of McVay, 14 Idaho 64, 93 P. 31.)

If the district court may pass upon only such questions of fact "as were heard and determined by the probate court," and no such questions were heard or determined by such court, the district court would have no questions of fact to try "de novo."

There was no necessity for the probate court to give notice to the heirs in this case of his intention to enter a nunc pro tunc order.

"It is always competent for the parties in interest to relieve the executor or administrator of his obligation to account." (11 Am. & Eng. Ency. of Law, 1185; Middlecoff v. Superior Court, 149 Cal. 94, 84 P. 764; In re Pruyn's Will, 141 N.Y. 544, 36 N.E. 595.)

It is competent for parties in interest to waive all objections to the account, and if they do so, it will, of course, be unnecessary for the court to give them notice of his intention to enter an order of settlement.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

Orson Dalrymple died on the 14th day of May, 1907, in the county of Bear Lake, state of Idaho. At the time of his death he was the possessor of several pieces of real estate and considerable personal property. H. H. Dalrymple and A. B. Dalrymple were appointed administrators of the estate of Orson Dalrymple. The appellants in this case, and likewise the respondents, were heirs of Orson Dalrymple.

The respondents, H. H. Dalrymple and A. B. Dalrymple, qualified as administrators and took charge of the property of the estate and administered the estate and disposed of the property belonging to the estate. On May 31, 1909, the administrators of said estate filed a report in the probate court of Bear Lake county, and on September 30, 1910, filed their final report as administrators of said estate. On the same day the probate judge made an order that the final report be heard on October 12, 1910, and on that day the hearing was continued to October 19, 1910, and on that day the hearing was continued until October 24, 1910.

On November 17, 1910, the appellants, heirs of the estate, by their attorneys, served upon the attorneys for the administrators and filed in the probate court their written objections and exceptions to various items embraced in the partial and final settlements and reports made by the administrators. It also appears that on February 21, 1911, the appellants, by leave of the court, filed supplemental and additional exceptions to the final report for settlement filed by the respondents. On May 6, 1911, the probate judge entered a minute and record and ordered the same be entered as of October 24, 1910. This order of the probate judge evidently was made by reason of the fact that for some reason which does not clearly appear the probate judge had neglected to make an entry as to what was done on the 24th of October, the date fixed for hearing the objections made to the final and partial reports made by the administrators. The order reads as follows:

"In the Matter of the Estate of ORSON DALRYMPLE, Deceased.

"HEARING ON SETTLEMENT OF FINAL ACCOUNT AND PETITION FOR FINAL DISTRIBUTION.

"Be it remembered that this matter came on regularly to be heard the 12th day of October, 1910, pursuant to the order of the court to show cause, and due notice thereof having been given by the clerk of the court, according to law.

"By request of Charles E. Harris, Esq., representing certain heirs, and consent therein by the administrators of the estate, said hearing was by the court continued to the 19th day of Oct., 1910.

"On the 19th day of October, 1910, pursuant to continuance of above matter, this cause came on regularly to be heard, DeMeade Austin, Esq., representing the administrators of said estate and Charles E. Harris, Esq., appearing for certain heirs, whereupon the court proceeded to the examination of the final account and the petition for distribution filed herein.

"And it appearing that a great many details of said final account were to be examined, and request having been made by said counsel for certain heirs for further time in which to prepare objections to items in said account, by agreement of counsel of the respective parties, the court further continued said hearing to the 24th day of October, 1910.

"On the 24th day of October, 1910, pursuant to continuance, this matter came on regularly to be heard, DeMeade Austin, Esq., representing the administrators and Charles E. Harris, Esq., appearing for certain heirs, as before, when the following proceedings were had, to wit:

"Charles E. Harris on behalf of certain heirs interposed sundry verbal objections to items contained in said final account including an objection to the allowance of attorney fees out of the funds of said estate; said counsel requesting that all objections be discussed by counsel and the administrators under the direction of the court; whereupon said administrators explained in detail all matters and items excepted to, at the conclusion of which Attorney Harris requested a few minutes intermission for the purpose of further consultation with his clients in said cause; the same was granted by the court; the said counsel, upon returning into court and the court being again in session, waived in detail all objections theretofore interposed, excepting as to the question of attorney fees; upon which item Attorney Harris requested the court that the same be not made a matter of record but asked the court to hold the matter of his order with respect to said final account in abeyance for a day or two to afford said counsel opportunity to submit any points of law upon the allowance of attorney fees which he might be able to find, to which request the court consented; and the matter of hearing upon final account was thereupon fully concluded. To all of which said heirs by T. L. Glenn, Atty., except.

"This minute and record made and entered this 6th day of May, 1911, as of the 24th day of October, 1910.

"J. H. GRIMMETT,

"Probate Judge."

The record further shows that on May 6, 1911, the probate judge made an order reciting that the administrators of the deceased appeared in person and by attorney, and that the appellants appeared by T. L. Glenn, and that the objections and supplemental bill of exceptions to the settlement of the administrators' reports came on for hearing, and that the probate judge found and held that such objections and bills of exceptions were not filed in time as required by law, and that the objection made by the administrators that the same were not filed in time was sustained, and the court declined to consider the bill and supplemental bill of exceptions, and that exception was taken to the ruling of the court by the appellants.

The record also contains an order made by the probate judge on May 9, 1911, which reads as follows:

"In the Matter of the Estate of ORSON DALRYMPLE, Deceased.

"ORDER APPROVING FINAL REPORT.

"H H. Dalrymple and A. B. Dalrymple, administrators of the estate of Orson Dalrymple, deceased, having filed in this office on the 30th day of September, 1910, their final account and a petition for final distribution of said estate, the court having appointed the 12th day of Oct., 1910, at 11 o'clock A. M. at the court house at Paris, Idaho, as the time and place for hearing upon said petition and account, and due notice of said hearing having been given according to law; and said hearing having been continued to the 19th day of Oct., and upon said day further continued until the 24th day of Oct., 1910, and all matters touching said report and said petition having been fully and satisfactorily explained to the court; and all verbal objections to said account having been fully disposed of, and the court being fully advised in the premises;

"It is hereby ordered, adjudged and decreed that the final account, aforesaid, be and the same is hereby fully approved, settled and allowed; and it is further ordered that petition for final distribution be and the same is hereby granted.

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