Simons v. Davenport

• Decision Date: 19 June 1945
• Docket Number: 7233,7234,7235
• Citation: 66 Idaho 400,160 P.2d 464
• Parties: W. T. SIMONS, Executor of the Estate of Henry S. Davenport, deceased, Appellant, v. JESSIE M. DAVENPORT, Respondent
• Court: Idaho Supreme Court

160 P.2d 464

66 Idaho 400

W. T. SIMONS, Executor of the Estate of Henry S. Davenport, deceased, Appellant, v. JESSIE M. DAVENPORT, Respondent

Nos. 7233, 7234, 7235

Supreme Court of Idaho

June 19, 1945

1. Statutes

Although courts are not bound by decisions of courts of California from which probate laws were adopted, nevertheless they are high authority on the statutes construed. (I.C.A., sec 15-1115.)

2. Executors and administrators

Where probate court fixed date for settlement of executor's account and objections thereto as of April 6, and notices were so given, court could not, without further notice to or consent of interested parties, advance such dates to March 15 and March 20, even though surviving widow and coexecutor and testamentary trustee were in default as to their accounts.

3. Executors and administrators

Where probate court improperly advanced dates for settlement of executor's account and decree of distribution without notice to interested parties, probate court had jurisdiction to set aside orders approving final account and entering decree of distribution on such advanced dates, and appeals from such orders was not exclusive remedy. (I.C.A., secs. 15-1109, 15-1115, 15-1116, 15-1118, 15-1119, 15-1121, 15-1132, 15-1133.)

4. Courts

Under statute relating to effect of dismissal of appeal, district court's dismissal of appeal from probate court and affirmance of final order of probate court revoking previous orders was in effect an affirmance, although proper procedure would have been to consider the appeals as such and not to dismiss them. (I.C.A., sec. 11-218.)

Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Shoshone County. Honorable Miles S. Johnson, Presiding District Judge.

Result affirmed.

Lester S. Harrison, Robert E. Brown and James A. Wayne for Appellant.

The order of the Probate Court of June 19th, 1944, was an appealable order.

I.C.A. sec. 11-401, as amended by S. L. 1935, Ch. 71, page 126, sub-secs. 6 and 7.

The orders, decrees and judgments of the Probate Court in probate matters are conclusive, and subject to be set aside, modified or reversed only on appeal.

I.C.A. sec. 15-1307, as to decree of distribution; Grignon v. Astor, 2 How. 319, 11 L. ed. 283; Davis v. Gaines, 104 U.S. 386, 26 L. ed. 757; Kline v. Shoup, 38 (Ida.), 202; Clark v. Rossier, 10 (Ida.), 348; Asher v. Bone 100 F.2d 315.

Probate courts are without jurisdiction to vacate their orders or decrees after the same have become final.

I.C.A. sec. 5-905.

Whitla and Knudson for Respondent.

An order settling a final account or a decree of distribution without notice, as required by law, is void.

Rich v. Victoria Copper Mining Company, 174 F. 380; Miller v. Shelton, 241 P. 132; Livermore v. Ratti, 89 P. 327; Swinehart v. Turner, 38 (Ida.), 602.

Probate court has power to set aside its order or decree.

Luke v. Kettenbach, 32 (Ida.), 191; Baldwin v. Anderson, 51 (Ida.), 614; Kline v. Shoup, 38 (Ida.), 202; Miller v. Prout, 33 (Ida.), 709.

The right of appeal from probate court to district court in probate matters is wholly of statutory regulation and no right of appeal exists unless specifically authorized by statute.

Sec. 11-401 I.C.A. as amended by Chapter 71 of 1935 Session Laws; In re Estate of Coryell, 16 Ida. 201; Vaught v. Struble, 63 Ida. 352.

No appeal will lie from an order vacating or setting aside a settlement of final account or a decree of distribution. (In re Estate of James Dunn, 53 Cal. 631; Estate of Michael Calahan, 60 Cal. 232; Estate of H. W. Dean, 62 Cal. 613; In re Wiard's Estate, 24 P. 45; In re Hickey's Estate, 53 P. 818.)

Givens, J. Budge, Holden and Miller, JJ., concur. Ailshie, C.J., special concurrence.

OPINION

Givens, J.

Henry S. Davenport died testate April 29, 1942 in Kellogg, survived by his widow, Jessie M. Davenport, brother, Milton W. Davenport, and his daughters, Ruth Davenport Blanchard and Katherine Davenport Harris, leaving separate and community real and personal property.

The will is not set forth, but appellant, W. T. Simons, is referred to as the surviving executor and Milton W. Davenport as co-executor and testamentary trustee administering the portion of the estate in North Carolina, and Henry Sample, alternate trustee.

(Milton W. Davenport and his daughters transferred all their interest in the estate to Mrs. Jessie M. Davenport, hence except as noted hereafter, their interests need not be separately considered).

January 29, 1944, the Probate Judge of Shoshone County cited for hearing and determination Thursday, April 6, 1944, at 10:00 A. M., the executor's petition for approval of his first and final account and objections thereto; ordering Milton W. Davenport to file within forty days and Mrs. Jessie M. Davenport within thirty days, complete accounts of their respective estate transactions. Said citation was, as ordered, personally served on the two Davenports; neither Milton W. Davenport nor Mrs. Jessie M. Davenport complied; the Probate Judge without further notice entered their defaults and settled and approved, the first and final account as filed by W. T. Simons, March 15, 1944, and entered decree of distribution March 20, 1944.

Thereafter Milton W. Davenport and his daughters filed, March 31, 1944, a motion to vacate and set aside such orders and decree, and April 6, 1944, which was the day originally set for the hearing, filed objections to the executor's account. Mrs. Jessie M. Davenport did likewise on April 6, 1944, with supporting affidavit and similar motions. Milton W. Davenport and his daughters appealed May 19, 1944 from the order of approval March 15, 1944 and decree of distribution March 20, 1944.

June 14, 1944, the Probate Judge sustained the motions and objections so filed, and set aside and vacated the defaults theretofore entered, approval of the account, and decree of distribution.

In suit 7233, appellant-executor appealed from such orders of revocation to the District Court; in action 7234, asked as ancillary a writ of prohibition to stay further proceedings; and in action 7235, sought a writ of review.

Respondent Davenport disqualified Honorable Albert H. Featherstone, resident and incumbent judge in the First District, and secured substitution, by the Governor's designation, of Honorable Miles S. Johnson of the Tenth District; who sustained respondent's motions to dismiss the above appeal and quash the writs of prohibition and review, entering responsive decrees from which the instant appeals were taken.

Section 15-115 I.C.A. is identical with Section 1633, Civil Code of Procedure California, and was evidently taken therefrom.

As stated in Short v. Thompson, 56 Ida. 361 at 375, 55 P.2d 163:

"* * * Our probate laws were adopted from the California code, and while we are not bound by the California decisions thereon, nevertheless they are of high authority on the statutes construed."

The above case followed with approval In re Spanier's Estate, 120 Cal. 701, 53 P. 357. Though the Short case did not directly involve the question of jurisdiction dependant upon proper notice, the inference is clear that that portion of the Spanier case was approved, and the Spanier case held with regard to the necessity of notice and compliance with Section 1633, supra, as follows:

"* * * Sections 1633 and 1634 of the same chapter provide that notice of the day on which the settlement of any account is to be heard must be given in the manner prescribed in said sections; and it is quite apparent that if such notice be not given there can be no valid settlement of the account, and consequently no valid order made for the payment of a claim like that of Frank. * * *"

Such thought has been continuously followed and declared by California.

No notice whatever was given of the hearings of March 15th and March 20th, 1944. The statute provides for continuance, 15-1119 I.C.A., but does not provide for advancing the date. Therefore the following pronouncement following the Spanier case approved by the Short case is in point:

"* * * This order of the court was based upon a hearing had without notice. * * * If a decree rendered under such circumstances is binding upon the world, then a decree settling the final account of an administrator, made without notice, (emphasis ours) would be binding. * * * The court only has jurisdiction over the subject-matter when the whole world is served with statutory notice. This question was incidentally touched upon when this case was heard upon a former appeal (In re Smith's Estate, 117 Cal. 508, 49 P. 456), where it was held that the claim of Thorne could not be paid under the order of the court made without the statutory notice required to be given upon the settlement of the administrator's accounts. * * * In re Spanier's Estate, 120 Cal. 698, 53 P. 357, is directly in line with the last case cited. * * *" In re Smith's Estate, (Cal.), 55 P. 249 at 250.

Oklahoma under a statute similar to that of California and ours has held settlement of an account without notice is void.

"* * * The next section, 1336, 1921 Statutes, provides:

"'Every account for the final settlement and distribution of an estate shall stand for hearing at a date to be fixed by the county judge, not less than twenty days after the filing thereof; and notice of such hearing shall be given by publication for two successive weeks in some newspaper of general circulation published in the county.'

"It would seem that without the notice being given the court is without authority to make an order settling the accounts of the guardian or administrator, and the attempt to do so without such notice is void.

"Section 1340, Compiled Laws of 1921, refers to the...