Shields v. Pauwelyn (In re Tuohy's Estate)

• Decision Date: 04 December 1905
• Citation: 33 Mont. 230
• Parties: In re TUOHY'S ESTATE. SHIELDS et al. v. PAUWELYN.
• Court: Montana Supreme Court

33 Mont. 230

In re TUOHY'S ESTATE.SHIELDS et al.

v.PAUWELYN.

Supreme Court of Montana.

Nov. 6, 1905.

On Rehearing, Dec. 4, 1905.

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

In the matter of the estate of James Tuohy, deceased. Petition by Cyril Pauwelyn, as executor, to sell lands for the payment of debts. From an order granting the petition. Daniel Shields and another, devisees, appeal. Affirmed.

W. Y. Pemberton, H. L. Maury, and J. B. Clayberg, for appellants.

John J. McHatton and John G. Brown, for respondent.

BRANTLY, C. J.

Appeal from an order of the district court of Silver Bow county directing a sale of real estate belonging to the estate of James Tuohy, deceased.

James Tuohy died on or about October 2, 1893, in Silver Bow county. His estate consisted of a small amount of personal property and certain real estate, chiefly undeveloped mining claims. He left a will which, after disposing of most of the estate by special bequests, closes with this clause: “I hereby appoint Cyril Pauwelyn, of Butte, sole heir and executor of this my last will and testament, without bonds.” Cyril Pauwelyn, having qualified as executor under an order of the district court, entered upon the discharge of his duties, and has continued therein. Soon after his appointment, litigation arose involving the validity of claims against the estate to a large amount, sufficient, if established, together with the undisputed claims, to consume the entire estate. The last of this litigation was finally disposed of about March 25, 1903; the principal claim having been declared invalid. On March 22, 1894, the executor filed his petition for an order to sell a portion of the real estate, alleging facts showing a necessity therefor. For some reason, doubtless because of the pending litigation and uncertainty as to the amount of funds necessary to pay claims, this petition was abandoned. Thereafter some of the mining claims were leased, with the expectation that a sufficient amount would be realized from royalties upon ores extracted therefrom to pay the debts, and that a sale would not be necessary.

The petition upon which the order now before us was made was filed on April 21, 1904. It appears therefrom that the personal property has been exhausted in the payment of expenses of administration, the principal part of which have been counsel fees and other disbursements in connection with the litigation referred to above. The debts chargeable against the estate, as set forth therein, amount to $10,572.15. The charges for administration and other expenses already accrued and unpaid amount to $4,845.28. The executor states that he is unable to estimate the amount of charges and expenses yet to accrue, “owing to the uncertainty of the time it will require to close up and settle said estate; the amount or amounts that may be realized from the sale or sales of property belonging to the said estate, so as to enable your petitioner to determine the amount of his commissions, and the pendency in this court of an action in which said estate is interested, *** entitled Cyril Pauwelyn, Executor, etc., Plaintiff, v. Charles A. Elvers, Defendant.” The nature of this claim does not appear. The value of the property belonging to the estate is estimated to be $47,350. The court is asked to grant an order authorizing the executor to sell all of the real property belonging to the estate, alleging that the entire amount derived from the sale thereof will be necessary in order to pay the claims approved and allowed, besides expenses, commissions, etc.

It appears that three parcels of the real estate are not mentioned in the will, namely, an undivided one-half interest in the Malone lode claim, and the Belmont and Amy claims. Specific bequests are made of all the rest of it; Daniel Shields being mentioned as devisee of an undivided one-fourth interest in the Tuolumne lode claim, and Thomas McLaughlin as devisee of a lot and house thereon, in the city of Butte. Appellants Sheilds and McLaughlin appeared and objected to the granting of the order of sale. Shields' objections are, in substance, first, that for more than 10 years prior to the filing of the petition he had been in open, notorious, adverse, exclusive, uninterrupted, and continuous possession of the one-fourth interest in the Tuolumne lode claim belonging to the estate, and that no ancestor, nor predecessor, nor the executor had in 10 years prior to the filing of the petition been seised of it or any part thereof, and that the executor's cause of action is barred by the provisions of sections 29, 30, div. 1, of the Code of Civil Procedure of the Compiled Statutes of 1887, and by section 9 of the Political Code, and sections 483, 484, and 3456 of the Code of Civil Procedure of 1895; second, that the interest in this claim was devised to him by deceased for a valuable consideration, that much other property was in the said will devised to charities without consideration, that such other property is sufficient in value to pay all debts and other claims, together with the expenses of administration, and that for this reason the property devised to him should not be sold until after all the property so devised should be exhausted; and, third, that certain property had not been devised at all, and that it should first be resorted to to pay claims. McLaughlin objected on the two grounds last mentioned. The executor replied to these objections. Upon the issues thus joined a hearing was had by the court sitting without a jury. Thereupon the court made its findings of fact and conclusions of law, and entered an order directing a sale.

The court found that the debts, costs, and expenses of administration already accrued against the estate amount to $14,417.45, with interest; that there was no money belonging to the estate to pay the same; that the real estate was not yielding any revenue; and that the sale of all of it was necessary to pay the debts. The court further found that there had been no unreasonable delay on the part of the executor in making application for the order of sale; that the property mentioned in the petition belongs to the estate; that none of it has been delivered to the heirs or devisees by the executor; and that the same is in the control of the executor, and under the direction of the court. As conclusions of law, the court declares that the objections of Shields and McLaughlin were without merit; that the executor was entitled to have an order of sale as prayed for; that the property be sold by the executor in the manner and order provided for by the statute, and that he exercise his judgment and option as to which portion, or interest, or parcel of the property specifically devised should be first offered for sale and sold; and that in making said sale he do not offer for sale, or sell, any more of the property than may be necessary to pay said claims, with interest, and the debts, costs, and expenses which may hereafter accrue.

Upon these facts and conclusions of law, the court entered its order directing the executor to sell so much of the real estate as may be necessary to pay the debts, claims, and expenses of the estate, and the costs and expenses of administration accrued, or that may hereafter accrue, either in one parcel or in subdivisions, as the executor should judge most beneficial to the estate, and in the order prescribed by the statute and the foregoing findings and conclusions; and that, when he shall have sold sufficient for the purposes aforesaid, he shall not sell or offer for sale any more. From this order, so far as it directs the sale of the interest devised to them respectively, Shields and McLaughlin have prosecuted this appeal.

1. Contention is made that the order cannot be sustained because the court denied the appellants a trial by jury upon the issues presented by their objections. Without pausing now to inquire whether any material issues are presented by the objections, but assuming this to be so, and assuming, further, that, upon every like application wherein material issues of fact arise, the right of trial by jury exists, there is no merit in the contention. The Code of Civil Procedure provides:

“Sec. 2923. All issues of fact in probate proceedings must be tried in conformity with the requirements of article 11, chapter 11, of this title, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. ***”

“Sec. 2924. If no jury is demanded, the court or judge must try the issues joined. If on written demand a jury is called by either party, and the issues are not sufficiently made up by the written pleadings on file, the court or judge, on due notice to the opposite party, must settle and frame the issues to be tried, and submit the same, together with the evidence of each party, to the jury, on which they must render a verdict. ***”

The provisions of article 2, c. 2, tit. 12, to which section 2923 refers, relate to contests arising over the probate of wills. Section 2340 of article 2, c. 2, of this title provides, among other things, that, upon the presentation of any one or more of the issues of fact enumerated therein, they must, “on request of either party in writing, filed three days prior to the day set for the hearing, be tried by a jury. If no jury is demanded, the court or judge must try and determine the issues joined. ***” Under this section it is clearly the duty of the court or judge to try the issues joined without a jury, unless one is demanded in the manner and within the time prescribed therein. Its requirements presuppose issues joined before the demand for a trial by jury is made. The policy of the law is that proceedings of this nature should progress as speedily as they may, to the end that the affairs of the estate may be closed up, and the parties in interest discharged from the supervision of the court. The presiding judge is not supposed to know...