Schwarze v. Logan

• Citation: 90 P.2d 692,60 Idaho 251
• Decision Date: 10 May 1939
• Docket Number: 6626
• Parties: GEORGE F. SCHWARZE, Appellant, v. EARNEST F. LOGAN, Jr., Respondent
• Court: United States State Supreme Court of Idaho

90 P.2d 692

60 Idaho 251

GEORGE F. SCHWARZE, Appellant, v. EARNEST F. LOGAN, Jr., Respondent

No. 6626

Supreme Court of Idaho

May 10, 1939

EXECUTORS AND ADMINISTRATORS-PRIORITIES IN RIGHT OF ADMINISTRATION-APPOINTMENT-PROCEEDINGS.

1. A resident son of a deceased person has priority in right of administration over nominee of the deceased's sister and creditor residing in another state. (I. C. A., secs. 15-312, 15-316, 15-321, 15-322, 15-324, 15-326, 15-328.)

2. Non-resident sister of deceased person was not vested with right to nominate administrator on account of the relationship. (I. C. A., secs. 15-312, 15-316, 15-321, 15-322, 15-324, 15-326.)

3. A resident son of deceased person did not waive priority in right of administration over nominee of nonresident sister and creditor of deceased by waiting approximately 10 months before filing petition, where the son appeared before the sister's nominee's appointment and objected to issuance of letters to him and at same time claimed letters for himself. (I. C. A., secs. 15-312, 15-328.)

4. Courts will not do or permit to be done vain and useless things when they can be avoided by the application of the law to the facts as they are presented to the court.

5. When conditions, provided for in statute regarding revocation of letters of administration, are presented to court at original hearing for letters, it is duty of probate court to construe that statute in connection with other statutes and issue letters to the person qualified to receive the same and not appoint a person whose removal would be compulsory upon the application of any one of the class or the nominee thereof mentioned in statute providing for the revocation.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

From a judgment of the district court affirming an order of the probate court appointing an administrator, George F. Schwarze appealed. Judgment reversed and cause remanded with directions.

Reversed and remanded with instructions. Costs awarded to appellant.

E. A Owen, for Appellant.

Priorities in right of administration are fixed by statute and impose a duty on the court in making appointments, and the person first entitled to letters of administration has an absolute right of which the court has no power to deprive him arbitrarily or otherwise than as provided in the statute. (Section 15-312, I. C. A.; Estate of Daggett, 15 Idaho 504 98 P. 849; McCormick v. Brownell, 25 Idaho 11, 136 P. 613; Bancroft Probate Practice, secs. 240, 253.)

Qualifications of administrators are likewise fixed by statute, and a non-resident, not being a person entitled to appointment, has no statutory right or standing whatever to nominate another person in his stead and his request is ineffectual for any purpose. (Section 15-316, I. C. A.; Bancroft Probate Practice, sec. 251; Estate of Beech, 63 Cal. 458; In re Wise's Estate, 175 Cal. 196, 165 P. 531.)

William W. Renfrew and Hoyt E. Ray, for Respondent.

If a member of a prior class appears seasonably and asks for letters of administration himself or requests the appointment of another who is not under a disability to act, members of class 11, sec. 15-312, I. C. A., "any person legally competent" will not be appointed.

But this priority in right of administration is a right that must be claimed to be operative. In other words the priority is a privilege to be claimed by the party given priority, and not a right which excludes other persons if the person first in priority fails or refuses to claim its benefits. (Sections 15-312, 15-324, I. C. A.; Wright v. Merrill, 26 Idaho 8, at 14, 140 P. 1101; Bancroft, Probate Practice, sec 242, pp. 445 and 446.)

A non-resident is not competent to administer an estate in Idaho. But, such non-resident may request the appointment of any legally competent person. Such request does not serve to advance the person nominated to the priority of the one making the request. (Wright v. Merrill, supra; Estate of Daggett, 15 Idaho 504, 98 P. 849.)

HOLDEN, J. Ailshie, C. J., Budge, Givens, Morgan, JJ., concur.

OPINION

HOLDEN, J.

H. J. Schwarze, a resident of Bonneville county for many years, died intestate June 29, 1926. He left two sons surviving him, one a resident of the State of Washington and the other, appellant--49 years of age--a resident of the State of Idaho. On request of a sister of decedent, a resident of the State of Missouri, respondent filed a petition for appointment as administrator of the Schwarze estate. Appellant filed written objections, or opposition, to the petition, and also petitioned for letters. The probate court overruled the objections, denied appellant's petition and appointed respondent. On appeal to the district court, the order of the probate court appointing respondent was affirmed. From the judgment of the district court affirming the order of the probate court, an appeal was prosecuted to this court.

Appellant contends, under the statute fixing the order of priority in right of administration, he is entitled to letters, and that the sister of the decedent has no statutory right to nominate the respondent. The sections of the statute bearing upon the contention are:

"15-312, I. C. A. Priorities in right of administration:

Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:

1. The surviving husband or wife or some competent person whom he or she may request to have appointed.

2. The children.

3. The father or mother.

4. The brothers.

5. The sisters.

6. The grandchildren.

7. The next of kin entitled to share in the distribution of the estate.

8. Any of the kindred.

9. The public administrator.

10. The creditors.

11. Any person legally competent."

. . . .

"15-316, I. C. A. Disqualifications.

No person is competent to serve as administrator or administratrix who is:

1. Not a bona fide resident of the state.

2. Under the age of majority."

. . . .

"15-321, I. C. A. Contest of application.

Any person interested may contest the petition by filing written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file a petition and give the notice required for an original petition, and the court must hear the two petitions together."

. . . .

"15-322, I. C. A. Hearing of application--order--

On the hearing, it being first proved that notice has been given as herein required, the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto."

. . . .

"15-324, I. C. A. Applicant entitled to letters.

Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves."

. . . .

"15-326, I. C. A. Grant to person not entitled.

Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court."

. . . .

"15-328, I. C. A. Revocation of letters.

When letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother or sister of the intestate, any one of them who is competent, or any competent person at the written request of any of them, may obtain the revocation of the letters and be entitled to the administration, by presenting to the court a petition praying the revocation, and that letters of administration may be issued to him."

The question is, whether under these sections of the statute, a son of a deceased person residing in the State of Idaho, has priority in right of administration over the nominee of a sister and creditor of a deceased person...