Reed v. Stewart

• Decision Date: 30 November 1906
• Citation: 87 P. 1002,12 Idaho 699
• Parties: GEORGE M. REED, Appellant, v. C. B. STEWART, Administrator, Respondent
• Court: Idaho Supreme Court

87 P. 1002

12 Idaho 699

GEORGE M. REED, Appellant, v. C. B. STEWART, Administrator, Respondent

Supreme Court of Idaho

November 30, 1906

MOTION TO DISMISS APPEAL-PROBATE COURTS-PROBATE LAW-PROCEEDINGS TO SELL REAL ESTATE-SALE OF REAL ESTATE-MINOR HEIRS-GUARDIAN AD LITEM-SERVICE OF NOTICE OF APPEAL-ADVERSE PARTY.

1. Under the provisions of section 5701, Revised Statutes, the property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and the possession of the administrator appointed by that court for the purposes of administration.

2. As the title to the property of the intestate in such cases passes to the heirs subject to the provisions of said section, they are interested parties in the sale thereof, and where a sale has been confirmed by the probate court and the purchaser appeals from such confirmation, such heirs or their guardian ad litem are adverse parties and must be served with a notice of appeal.

3. Where the guardian ad litem of minor heirs has appeared in a proceeding commenced by the administrator to sell real estate belonging to his intestate, and consented to the sale, and the purchaser files his objections to the confirmation of such sale, and the same are overruled by the court and the sale confirmed, and the purchaser appeals from such order of confirmation, the guardian ad litem is an adverse party thereto, and must be served with the notice of appeal.

4. Where an administrator files his petition and commences proceedings for the sale of real estate belonging to his intestate, all of the orders made in such matter are in the one proceeding, as such proceeding consists of all orders and things done by the court in such matter from the filing of the petition to the confirmation of the sale and delivery of the deed.

5. The heirs in such cases are pecuniarily interested in all such property and are entitled to their day in court in all of the proceedings affecting the title to such property, and are adverse parties under the provisions of section 4808, Revised Statutes.

(Syllabus by the court.)

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

This is an appeal from the judgment of the district court dismissing the appeal of appellant from an order made by the probate court of Idaho county directing the confirmation of the sale of certain real estate and the conveyance thereof. A motion to dismiss the appeal from the judgment of the trial court is granted and the judgment affirmed.

Motion to dismiss sustained, without prejudice to another appeal. Costs awarded to the respondent.

Scales & Taylor, for Appellant.

Session Laws of 1903, pages 372, 373, expressly changes the old law and definitely provides who shall be served with notice of appeal. The notice of appeal must be filed with the clerk of the probate court and a similar notice must be served "upon the administrator, administrator, executor and executrix (unless they be the appellants), and upon all other parties interested who appeared upon the motion or proceeding which the appellant desires to have reviewed, or upon their attorneys."

On the proceeding appealed from the only persons who appeared was the administrator, by his attorney, J. M. McDonald, and appellant with his attorneys, Scales & Taylor.

"Beneficiairies under a will, who have not appeared and resisted the petition in probate proceedings of one claiming as heir, when notice has been given to all persons interested in the estate, are not necessary parties to the appeal from an order denying a new trial." (In re Ryer's Estate, 110 Cal 556, 42 P. 1082; In re Calkin's Estate, 112 Cal 296, 44 P. 577.)

The notice seems to have been served on all the respondents who appeared in the proceeding, and that was all the statute required. (Seattle & M. Ry. Co. v. Johnson, 7 Wash 97, 34 P. 567.)

No service was made on the guardian ad litem; held none required, he having made no appearance. (Home Savings & Loan Assn. v. Burton, 20 Wash. 688, 56 P. 940; Ryan v. Ferguson, 3 Wash, 356, 28 P. 910; Herriman v. Menzies, 115 Cal. 16, 56 Am. St. Rep. 82, 44 P. 660, 46 P. 730, 35 L. R. A. 318.)

Many of the probate proceedings are separate and distinct; require notice to all parties interested, at the different stages, and each is a distinct order from which an appeal may be had, and a reversal of the order not appealed from. (Idaho Rev. Stats., sec. 4831.)

J. M. McDonald, for Respondent.

Notice of appeal must be served upon the adverse party, and by adverse party is meant all parties whose rights may be affected by the reversal or modification of the judgment appealed from. (Harper v. Hildreth, 99 Cal. 265, 33 P. 1103; Lydon v. Godard, 5 Idaho 607, 51 P. 459; Coffin v. Edgington, 2 Idaho 627, 23 P. 80, 7 L. R. A. 646; Lewiston Nat. Bank v. Teff, 6 Idaho 104, 53 P. 271; Inglehart v. Stansbury, 151 U.S. 68, 38, L.Ed. 76, 14 S.Ct. 237; Adams v. McPherson, 3 Idaho 718, 34 P. 1095.)

Any reversal or modification of the order confirming the sale of the said real estate would affect the interests of the said minors, and it is necessary that they or their guardian ad litem be served with notice of appeal. (Senter v. DeBernal, 38 Cal. 637.)

The supreme court cannot entertain the appeal, as the same has not been perfected. (Adams v. McPherson, 3 Idaho 718, 34 P. 1095, and cases cited.)

The appellant contends that the court will only review the proceedings had at the confirmation of sale, and served notice upon those that appeared at such proceedings, as is required by Session Laws of 1903, regulating appeals to the district court from the probate court.

This narrow construction cannot be accepted, for the same is not the construction placed upon the word "proceeding" by the courts. (Moorewood v. Hollister, 6 N.Y. 321.)

All the acts and proceedings of the probate court in devesting the heirs of the real estate of an estate is one action, and the law will not sanction the heirs being deprived of their interests in said property without their day in court. (Rev. Stats. 1887, sec. 5523; Bloom v. Burdick, 1 Hill. 130; Beckett v. Sclover, 7 Cal. 215, 68 Am. Dec. 237; Schneider v. McFarland, 2 N.Y. 459.)

SULLIVAN, J., AILSHIE C. J. Stockslager, C. J., Ailshie, J., and Sullivan, J., concurring. Stewart, J., took no part in the decision.

OPINION

SULLIVAN, J.

This is an appeal from the judgment of a district court dismissing the appeal from an order made by the probate court of Idaho county directing the confirmation of the sale of real estate and the conveyance thereof. The facts of the case are substantially as follows: The administrator of the estate of Louis H. Denison, deceased, filed his petition for the sale of certain real estate of his intestate's estate in the probate court of said county, for the purpose of paying the debts of said deceased, and alleged in said petition that he was also the guardian of the minor heirs of said deceased, and prayed that a guardian ad litem be appointed for said minor heirs to represent their interests in said matter; said petition also showed that said estate is solvent, and that there will be a residue for distribution among the heirs after all debts and expenses of administering said estate are paid. It appears that the probate court duly appointed R. F. Fulton, Esq., as guardian ad litem of said minor heirs to represent them in the matter of said sale; that upon the hearing of said petition said Fulton appeared as such guardian ad litem, and consented that said real estate be sold, and thereupon the probate court duly authorized said administrator to sell the same at private sale; that thereafter on July 11, 1905, the said administrator received a bid for said real estate from the appellant, the same being accompanied with ten percent of the bid in cash, which bid the said administrator accepted, and thereafter on July 31, 1905, he filed his return of said sale in the probate court of said county, and by order of said court said return of sale was set down for hearing on the twenty-sixth day of August, 1905. No objection was made by said Fulton as guardian ad litem to the confirmation of said sale. But on August 26, 1905, the said appellant appeared in said probate court and filed his objections to the confirmation of said sale, which were overruled by the court, and the court thereupon examined said return of sale and the testimony of witnesses in support thereof, and finding that the law and all the orders of the court had been duly complied with by said administrator in said matter, and that said sale and all things connected therewith had been fairly and legally conducted and done, the same was confirmed. From said order of confirmation the appellant appealed to the district court of Idaho county, but did not serve the said guardian ad litem with any notice of appeal. When the matter came on for hearing in the district court the administrator moved to dismiss the appeal on the grounds following, to wit: (1) That said guardian ad litem had appeared on the hearing of the petition for the sale of said real estate and consented thereto, and that he was not served with said notice of appeal from the probate court to the district court; (2) That the preunder under the provisions of said statute is connected with the subject of the action and affects the real estate to which the action relates.

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