Mannix v. Dolenty (In re Dolenty's Estate)

• Decision Date: 19 December 1916
• Docket Number: No. 3757.,3757.
• Citation: 53 Mont. 33
• Parties: IN RE DOLENTY'S ESTATE. MANNIX ET AL. v. DOLENTY.
• Court: Montana Supreme Court

53 Mont. 33

IN RE DOLENTY'S ESTATE.MANNIX ET AL.

v.DOLENTY.

No. 3757.

Supreme Court of Montana.

Nov. 17, 1916.

On Motion for Rehearing, Dec. 19, 1916.

Appeal from District Court, Broadwater County; Geo. W. Pierson, Judge.

In the matter of the estate of W. B. Dolenty, deceased. Petition by Con Mannix and others asking that Isabel Dolenty, executrix, be required to present an account and report under oath. From an order of the district court overruling objections and approving the account filed by the executrix, petitioners appeal. Order reversed, and proceedings remanded.

Walsh, Nolan & Scallon, of Helena, for appellants.

H. G. McIntire, of Helena, for respondent.

BRANTLY, C. J.

This is an appeal from an order made by the district court of Broadwater county, Hon. Geo. W. Pierson presiding, approving the fourth annual account of Isabel Dolenty, the surviving widow of W. B. Dolenty, deceased, and executrix of his will. Dolenty died on September 15, 1910. His estate consisted of lands and a large amount of personal property. Under the terms of the will the widow is entitled to take substantially the entire estate, subject to the payment of decedent's debts. She qualified as executrix on November 26, 1910, and has since been acting as such. On February 16, 1915, the executrix being in default in presenting her annual account, several of the creditors of the estate, having established claims aggregating about $20,000, presented to the court their petition asking that she be required to present an account and report under oath, disclosing the amount of money received and expended, the amount of claims presented and allowed, with the names of the claimants, and all other matters necessary to show in detail the condition of the estate. The petition charged, in substance, that the executrix had been guilty of mismanagement of her trust in several particulars; that she had failed to account for some of its assets; that she had been guilty of waste; that in certain instances she had turned over property to some of the creditors in discharge of claims due to them, to the detriment of the petitioners and other creditors, the estate being insolvent; and that, except as to such claims, none of the debts due the creditors had been paid. On February 19, 1915, the court made an order directing the executrix to file on or before March 15th a full and complete report and account of all her acts and transactions since the filing of her last account, and to make full disclosure of the condition of the estate. The account having been filed in response to the order, the petitioners interposed objections to the approval thereof. Some of these question the right of the executrix to be credited with certain items paid by her as expenses of administration. Most of them challenge the conduct of the executrix as a whole, specifying particular instances of neglect and mismanagement resulting in loss of assets, or a misapplication of them to her own use, or for the benefit of certain creditors. After a hearing had on June 4, 1915, the court overruled the objections and approved the account. From this order, the petitioners have appealed.

Before taking up the various contentions made by counsel, we remark generally that the administration of this estate has not been conducted with that degree of dispatch and attention to the rights of the petitioners which the law contemplates. The respondent has been somewhat hampered and delayed by litigation, but, so far as this record discloses, it has not been so extensive nor of such a character as to cause a delay of nearly five years, leaving the creditors of the estate without satisfaction of their claims. In all cases a reasonable time--the extent of it depending upon the particular circumstances--is necessary to enable the person charged with the duty of winding up the affairs of an estate to collect the assets and to get them into condition for distribution or convert them into cash in order to realize funds necessary to meet the demands of creditors. It is the policy of the law, however, that the proceedings be conducted with dispatch, to the end that the estate shall not be wasted by needless expense incident to delay and the continuation of allowances made to the widow. Creditors, if any, are entitled to prompt satisfaction of their claims, and those entitled to the residue to have distribution made of them. In re Tuohy's Estate, 33 Mont. 230, 83 Pac. 486;State ex rel. Mannix v. District Court, 51 Mont. 310, 152 Pac. 753.

After an examination of the record, we think that the order of the district court should be set aside, and that the respondent should be required to account for property disposed of without authority of law, for assets in the way of rents and profits of real estate in her possession which have apparently been lost through her neglect or want of attention, and to furnish information in detail as to the condition of the estate. We think, too, that she should be expedited in bringing the affairs of the estate to a close, or, as the only alternative, that some suitableperson be substituted in her place who has capacity and disposition to do so.

1. Upon the death of the decedent the estate was ostensibly solvent. As we shall presently see, owing to the loss of the rents and profits of the real estate for which the respondent has failed to account, the accumulations of interest upon established claims, and the expenses already incurred and hereafter necessary, it is now questionable whether, after other allowances which the respondent will in any event be entitled to as the surviving widow, the assets will be sufficient to satisfy the claims of the creditors.

By her inventory returned on February 18, 1911, there appears to have come into the hands of the respondent, with the other property, 45 head of mixed cattle and 7 work horses, valued at $1,225. In her third annual exhibit dated July 17, 1913, she accounted for 46 head of cattle of an estimated value of $1,500, and 4 head of horses valued at $250. On October 14, 1913, she made application to the court for an order authorizing her to sell at public auction or at private sale, for cash, all the property belonging to the estate. This application recited that the above-mentioned property was still in her hands. By subsequent orders from time to time the original order was amended by extending the time within which the sale might be made until November 2, 1914. Under this order sales of real estate were made which will be noticed later, but of no other property. In her report she makes account of her disposition of the cattle as follows:

“One Gene McCarthy was a creditor of the estate in excess of the value of the cattle mentioned in the inventory filed herein, and she, the executrix, turned over to him the said cattle in satisfaction of said claim with the approval of the court.”

In her testimony at the hearing she stated that McCarthy was her nephew and in her employment, and that she had sold to him both the cattle and the horses for the purpose of discharging his claim for services rendered in keeping her accounts. There is nothing in the record showing that McCarthy had a claim against the deceased at the time of his death, nor any substantial showing that he had rendered services to the respondent of any value. Nor is it disclosed that the court had granted the respondent authority to make disposition of the property otherwise than by sale for cash under the order of sale. When this became apparent from the testimony of the respondent herself under the questioning of counsel for the creditors, she undertook to justify her course, so far as the cattle were concerned, by claiming that they had never been the property of the estate, but had belonged to herself, and this, too, in face of the fact that she had repeatedly in her inventory, her several accounts, and in her application for the order of sale charged herself with them as property of the estate. She did not undertake to explain or justify her disposition of the horses otherwise than as heretofore stated. Upon this showing these items should have been disapproved, and the respondent charged with the property as part of the assets of the estate, on the ground that her disposition of it had been made without authority. Even though the services had been rendered, it was nevertheless the duty of respondent to submit the liability incurred for them to the court for allowance and pay it in the manner directed by the court, viz., by the sale of property for cash.

2. The evidence discloses that the respondent had been in possession of the following real estate which had belonged to her husband: The Ward ranch, consisting of 240 acres, valued at $6,000; the Lansing ranch, consisting of 1,100 acres, valued at $11,000; the Little home ranch, consisting of 320 acres, valued at $8,000; the Little river ranch, consisting of 400 acres, valued at $14,000; the Reed ranch, consisting of 852 acres, valued at $43,000; and the Morse ranch, consisting of 680 acres, valued at $9,600. Objection was made to the approval of the account on the ground that the respondent had failed to charge herself with revenues derived or properly derivable from this property, specifically the Reed and Lansing ranches.

An executor or administrator must take into his possession all the estate of his decedent, real and personal, and collect all debts due to the estate. Rev. Codes, § 7603. He is “chargeable in his account with the whole of the estate of the decedent which may come into his possession, at the value of the appraisement contained in the inventory, except as provided in the following sections, and with all the interest, profit and income of the estate.” Section 7628. The following sections in the chapter (sections 7629-7633) relieve him from liability for losses to the estate occurring without his fault, and prescribe the measure of his expenses and the compensation which he may...