Lethbridge v. Lauder

• Decision Date: 09 May 1904
• Citation: 76 P. 682,13 Wyo. 9
• Parties: LETHBRIDGE v. LAUDER
• Court: Wyoming Supreme Court

76 P. 682

13 Wyo. 9

LETHBRIDGE v. LAUDER

Supreme Court of Wyoming

May 9, 1904

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

The material facts are stated in the opinion.

Affirmed.

J. H Ryckman, for plaintiff in error.

The administratrix and her co-administrator not having been suspended or removed, the appointment of a special administrator was void. (Schroeder v. Court, 70 Cal 343; Pickering v. Wrighting, 47 Iowa 242; In re Palmer, 117 N. C., 133.) Defendant in error could not have been appointed administrator generally except upon the request of the widow. He seems to have been appointed at his own request. The statutory right to nominate (Sec. 4635) cannot be disregarded. (In re Dorris, 93 Cal. 611; 11 Ency. L., 777.) No right to nominate unless administration is vacant. (Carr's Estate, 25 Cal. 585.) The bond upon which the order was conditioned was not filed, and hence the appointee did not become even an administrator de facto. (Pryor v. Downey, 50 Cal. 388; Gray v. Cruise, 39 Ala. 559.) Appointment was not validated by approval of accounts. (Pryor v. Downey, supra.) The court disregarded the records and prior proceedings in the same case, which disclosed that there was no vacancy in the administration. (State v. Bates, 22 Utah 65; Hallenback v. Schnabel, 101 Cal. 312; State v. Bowen, 16 Kan. 475; State v. Daugherty, 106 Mo. 182; Lanpear v. Mestier, 89 Am. Dec., 663, notes; Temple v. State, 49 Am. Rep., 201, notes.) The letters of special administration being void, compensation is not allowable, nor fees paid to attorneys. (In re Frey, 52 Cal. 658.) Motion for new trial was not necessary in this matter as a condition precedent to review. (Goyhinech v. same, 80 Cal. 409.) The order complained of is a final order under Section 4247, and appeal lies under Section 4249. An exception is not required to final judgments or orders. (Bank v. Buckingham, 12 Ohio St. 402; Justice v. Lowe, 26 id., 372; Koehler v. Ball, 2 Kan. 160.) The order having been made without jurisdiction, no preliminary motion to vacate in lower court was necessary. (R. Co. v. Lockbridge, 93 Ind. 191; Stonington v. States, 31 Conn. 214; Graves v. Smart, 76 Me. 294; Petty v. Duvall, 4 Greene (Ia.), 120.) The order must be reversed upon the record showing want of jurisdiction. (R. Co. v. Swan, 111 U.S. 379.)

Hamm & Arnold, for defendant in error.

Defendant in error duly filed his bond, which was approved. His appointment as special administrator followed a disagreement between Mrs. Lethbridge, the administratrix, and her co-administrator. Having removed from the state, as shown by the records, she became incompetent to serve as administratrix. (R. S., Sec. 4637.) The fact of her non-residence was alleged in the petition for the appointment of the special administrator. Matters of fact are not considered in this court where all the evidence is not preserved. The presumption is that the District Court knew that the administratrix had removed, that her co-administrator had withdrawn, and that the administration was vacant.

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

Louisa J. Lethbridge seeks on error the reversal of a judgment of the District Court approving the accounts of William Lauder as special administrator of the estate of William Lethbridge, deceased, and particularly the allowance of fees and commissions of said Lauder for his services and certain disbursements for attorney's fees. The sole ground upon which the allowances were or are opposed is that Lauder's appointment was made without jurisdiction, for the alleged reason that at the time of his appointment there was not a vacancy in the administration of said estate. It is contended that Mrs. Lethbridge, the plaintiff in error, who had been originally appointed as administratrix, was never removed from that office.

The papers before us disclose the facts of the case to be as follows:

William Lethbridge died intestate while a resident of Uinta County, in this state, in 1894, leaving surviving him as his sole heirs, his widow, Louisa J. Lethbridge, and some minor children. The said Louisa J. Lethbridge and one James Burdett were appointed to jointly administer upon the estate. They continued to act until September, 1898. The only report made by either of them that is before us was filed in April, 1895, and signed by them, and it is therein stated that Mrs. Lethbridge and family had removed to Ogden, in the State of Utah. It appears that on or about September, 1898, said Burdett, at least, made a report and asked to be discharged; but that report is not contained among the papers here. On September 15, 1898, Mrs. Lethbridge signed and filed a petition praying the appointment of William Lauder, the defendant in error, as guardian of her minor children. In that petition it was set forth that said minor children were all residents of the State of Utah, and had no relatives in Uinta County, this state. Whether any order was made upon that petition, we are not properly informed. But it appears by a report made by Lauder in August, 1902, that he understood, and he so states, that an order was made, on the date of the filing of the petition, appointing him as such guardian, but that, not understanding that the order had required the execution of a bond by him as guardian, that duty had been neglected. It also appears that Mrs. Lethbridge was appointed guardian of said children in December, 1898, by the court in the State of Utah, where she and the children resided.

On September 24, 1898, said Lauder filed a petition asking his appointment as special administrator of the estate of William Lethbridge, deceased, for the purpose of assisting in closing up the affairs of said estate, collecting the moneys due, disposing of property and paying the sums collected to Louisa Lethbridge, guardian of said minor heirs, for them and for herself. It was set forth in that petition that James Burdett, one of the original administrators, had applied for an order discharging him, and that there was an unadministered estate amounting to $ 3,025, consisting in part of an indebtedness due to the estate from said Burdett, and that there was no resident administrator to take charge of the same. Thereupon on the same date letters of special administration were issued to him, the same reciting that James Burdett had filed his report and asked to be discharged. On the same date an order of the judge was entered appointing said Lauder special administrator for the purpose of assisting in closing up the affairs of said estate, and especially for the purpose of collecting, receipting for, and paying to Louisa Lethbridge the sum of $ 1,800, due the estate from James Burdett, and taking the receipt therefor of said Louisa Lethbridge, administratrix and guardian, and filing the same with the court, and to collect another debt therein stated, also to dispose of any real estate belonging to the estate as may be ordered by the court.

On the same date, September 24, 1898, the court entered another order reciting that James Burdett was owing the estate $ 2,240, and that an agreement had been made between him and Louisa J. Lethbridge, whereby he was to make a cash payment of $ 1,500, and give his note for $ 300; that the court deemed such settlement to the best interest of the estate; that said Burdett had paid said $ 1,500 to the clerk of court, and made his note for $ 300, payable to William Lauder, as special administrator of the said estate; and that all of said things were agreed to by said Burdett and said Louisa J. Lethbridge; and it was thereupon ordered that the clerk pay to said Lauder, as special administrator, the $ 1,500 aforesaid, and deliver him said note; and that thereupon said Burdett should be released from any liability on said indebtedness.

Whether any other order was entered regularly discharging Burdett as administrator does not appear. No complaint, however, is made by plaintiff in error on that ground. It is clear that he did not continue to act.

Lauder qualified under his appointment as special administrator by taking the required oath and giving bond on the date of his appointment, and evidently continued to act until he filed his final report, in August, 1902, to the allowance of which the exceptions now before us were interposed. Those exceptions were to the effect that Lauder was not special administrator, and that his pretended appointment was void for the sole reason already stated, viz. that Mrs. Lethbridge had not been removed as administratrix. The exceptions were heard by the court and overruled, and the report and accounts of the special administrator were approved. It appears that he had made at least one other report, viz: in 1899. And it is not shown that any objections were then or at any time interposed to that report.

A number of receipts given by Mrs. Lethbridge to Lauder, as special administrator aforesaid, for money turned over to her by him, were returned by him to the court as vouchers; and among them is one dated December 20, 1898 acknowledging the receipt of $ 477.25 from "W. Lauder, special administrator of the estate of William Lethbridge, deceased," signed by Mrs. Lethbridge for herself, and as guardian of the persons and estates of her minor children. It is unnecessary to specify the other similar receipts. There are several of them dated during 1901 and 1902. And among the vouchers appears a letter from Mrs. Lethbridge, dated December 16, 1901, addressed to Mr. Lauder, requesting him to pay a certain sum of money to a mercantile firm in Evanston, Uinta County, for goods that they had sent to her. She also inquired in that letter whether Mr. Murray had done anything "in regard to that money,"...