Miller v. Lewiston Nat. Bank

• Decision Date: 27 April 1910
• Citation: 108 P. 901,18 Idaho 124
• Parties: GEORGE T. MILLER, Administrator of the Estate of CARY A. CORYELL, Deceased, Appellant, v. LEWISTON NATIONAL BANK et al., Respondents
• Court: Idaho Supreme Court

108 P. 901

18 Idaho 124

GEORGE T. MILLER, Administrator of the Estate of CARY A. CORYELL, Deceased, Appellant, v. LEWISTON NATIONAL BANK et al., Respondents

Supreme Court of Idaho

April 27, 1910

ADMINISTRATOR-CLAIMS AGAINST ESTATE-ALLOWANCE-JURISDICTION OF PROBATE COURT-OBJECTIONS OF HEIRS TO REPORT OF ADMINISTRATOR-HEARING BY PROBATE COURT-FORM OF JUDGMENT IN THE DISTRICT COURT ALLOWING SUCH CLAIMS-LIMITATION OF ACTION-CONTRACT OF GUARANTY-LIABILITY OF DECEASED THEREON-QUALIFICATION OF ADMINISTRATOR TO ALLOW CLAIMS.

(Syllabus by the court.)

1. Where an administrator has tendered his resignation and makes his final report as such administrator, an order made by the probate judge approving such report and discharging him as administrator and appointing his successor approves all that is contained in such final report, but does not approve and allow claims against the estate which are under contest upon objections of the heirs to a former report listing such claims, and the allowance of which claims upon the hearing of the former report was expressly ordered by the probate judge to be continued for further consideration.

2. Where an administrator allows certain claims against the estate and thereafter renders a report listing such claims and heirs of the deceased object to such report and the allowance of such claims, on the ground that the administrator is interested in such claims as a joint debtor with the decedent, and upon the hearing of such report the probate court approves the same except as to such claims and continues such claims for future consideration, and the administrator tenders his resignation as administrator and renders his final report, and the probate court accepts such resignation and appoints his successor, the approval by the probate court of the final report of such administrator does not approve and allow such contested claims.

3. Where claims are pending against an estate before the probate court, upon an order setting aside their former allowance by the administrator and the probate judge upon objections by the heirs, the probate judge is not required to indorse upon said claims his allowance or rejection of the same within ten days after such order, nor does his failure to do so amount to a rejection of said claims and defeat his jurisdiction to set said claims for hearing upon the objections made by the heirs.

4. Where claims are filed against an estate and objections are made by heirs of the decedent to their allowance, and such objections are heard and tried by the probate court and thereafter appealed to and heard and tried in the district court, a judgment rendered in the district court against the administrator of said estate for the aggregate amount due upon said claims, with direction that said judgment be paid by the administrator in due course of administration, is in proper form and not erroneous.

5. The provisions of Rev. Codes, sec. 4071, were not intended to shorten the time within which an action may be brought, under the general provisions of the statute, but were intended to extend such time in certain cases; that is, where at the time of a party's death there is not one year left of the period of limitation prescribed by the general statutes after the issuing of letters, the claimant shall have at least one year therefrom; and to this extent this section extends rather than shortens the period. If, however, at the time of issuing letters more than one year is left of the period of limitation prescribed by the general statute, then this statute does not shorten that period and in such case has no effect.

6. The fact that an administrator allows a claim against the estate based upon promissory notes upon which the administrator and the deceased guaranteed the payment, does not render void or uncollectible such claim.

7. A contract of guaranty indorsed upon the back of a promissory note in the following words, "For value received I hereby guarantee the payment of the within note and waive protest, demand and notice of nonpayment thereof," is a several as well as a joint obligation of each person who executes such contract.

8. Such contract of guaranty being several, the obligation of each person who executed such guaranty becomes absolute upon default of the maker of such note.

9. Under the provisions of such contract of guaranty, the holder of such note was under no obligation to pursue the maker or use any diligence whatever to enforce the collection of said note against the maker, or to give notice to the guarantors of the nonpayment of said note.

10. The fact that an administrator, jointly liable with the deceased upon a contract of guaranty, allows a claim against such estate founded upon such contract of guaranty, does not show or tend to show a collusion between the administrator and the claimant to allow or enforce such claim against the estate in fraud of the rights of the heirs of said estate.

11. The holder of a promissory note is under no obligation in equity to pursue the maker of such note rather than a guarantor of the payment of such note, upon default being made in the payment of such note according to its terms, but may rely wholly upon the contract of guaranty and resort to such in enforcing the payment of such obligation.

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

From a judgment of the district court allowing certain claims against an estate on appeal from the probate court, this appeal is taken. Affirmed.

Judgment affirmed. Costs awarded to respondent.

John O Bender, for Appellant.

The claims of the Lewiston National Bank were finally and conclusively adjudicated by the probate court in the orders of May 25, 1908, settling the final account and finally accepting the resignation of J. Howard Howe, as administrator of said estate, and finally discharging him as such administrator. (Sec. 5401, Rev. Codes; American Bonding Co. v. People, 46 Colo. 394, 104 P. 83, and cases cited; State v. Bilby, 50 Mo.App. 162; Brandt, Suretyship and Guaranty, sec. 532; Veach v. Rice, 131 U.S. 293 9 S.Ct. 730, 33 L.Ed. 163; Waring v. Lewis, 53 Ala. 621; Ingram v. Maynard, 6 Tex. 130; Francis v. Northcote, 6 Tex. 185; State v. Stephenson, 12 Mo. 182; Jennings v. Le Breton, 80 Cal. 8, 21 P. 1127; Tobelman v. Hildebrandt, 72 Cal. 313, 14 P. 20; Reynolds v. Brumagim, 54 Cal. 254; Luco v. Commercial Bank, 70 Cal. 339, 11 P. 650; Haynes v. Meeks, 20 Cal. 288.)

It is certain that the probate court, either by its order of April 30th or by its order of May 25th, finally accepted the resignation of Howe, discharged him as such administrator and revoked his letters; and it is conclusively presumed that every fact existed which was necessary to support such order unless the same is negatived by the record. (Lucas v. Todd, 28 Cal. 185; McKenna v. Cosgrove, 41 Wash. 332, 83 P. 241; 23 Cyc. 1306.)

The allowance of said claims by J. Howard Howe was a nullity, because he was a coguarantor with the deceased for their payment and was a large stockholder in the lumber company, the principal obligor of said claims, and therefore his interest was adverse to the interest of the estate, and such allowance by the settlement of his accounts wherein they would be passed upon would be equivalent to the payment of his obligation. (Henderson v. Ayres, 23 Tex. 96; Clark v. Crosswhite, 28 Mo.App. 34; State v. Bidlingmaier, 26 Mo. 483; Estate of Crosby, 55 Cal. 578; Estate of Hill, 167 Cal. 238, 7 P. 664; Hobson's Estate, 40 Colo. 332, 91 P. 931.)

It is absolutely necessary for a creditor to have his claim allowed by an administrator, who is qualified to allow it within the time provided by statute, and such an allowance is jurisdictional, without which neither the probate court nor the district court on appeal has any authority or power to allow nor to bind the estate to pay. (Hobson's Estate, supra; Alvator v. First National Bank, 45 Colo. 528, 103 P. 378.)

The facts show conclusively that the bank and Howe by their acts were attempting to defraud the estate of Coryell under the forms of the law and through legal proceedings; and that for the court to order the payment of these claims will effectuate the fraud. (Warren v. Union Bank, 157 N.Y. 259, 68 Am. St. 777, 51 N.E. 1038, 43 L. R. A. 256; Perry on Trusts, 5th ed., sec. 427; White v. Penuel, 6 Penne. (Del.) 272, 66 A. 362; Olney v. Conanicut Land Co., 16 R. I. 597, 27 Am. St. 767, 18 A. 181.)

The contract of guaranty when taken into consideration with the surrounding facts is a joint obligation and not a joint and several obligation of said guarantors. (Briggs v. Latham, 36 Kan. 205, 13 P. 131; Bank v. St. Johnsburg & L. C. R. Co., 40 F. 425; 7 Cyc. 656; Alpaugh v. Wood, 53 N.J.L. 638, 23 A. 263; Brady v. Reynolds, 13 Cal. 32; Bank v. Morse, 129 Cal. 239, 61 P. 1088.)

James E. Babb, and John R. Becker, for Respondents.

When the account comes on for hearing, the claim comes on also for hearing, although the account only was set for hearing eo nomine, and when an order is entered approving such account, although it contains nothing about the claims that are listed with and as a part of the account, the claims are also allowed and approved, although they are not mentioned otherwise than by an order simply approving the account. (McDougal's Estate, 146 Cal. 191, 79 P. 878.)

The probate court retains entire probate jurisdiction and control over the matter, even in those cases where the case is sent to an action in an independent court; because of the provision in section 5474 to the effect that a judgment of an independent court in such an action has only the same effect as the allowance of the administrator and the probate judge which may be...