State ex rel. Adamson v. District Court of the Fourth Judicial Dist., In and For Lake County, No. 9510

Docket NºNo. 9510
Citation128 Mont. 538, 279 P.2d 691
Case DateFebruary 02, 1955
CourtUnited States State Supreme Court of Montana

Page 691

279 P.2d 691
128 Mont. 538
STATE of Montana ex rel. Wesley ADAMSON, Administrator of
the Estate of Elmer W. Adamson, deceased, Relator,
v.
DISTRICT COURT of the FOURTH JUDICIAL DISTRICT, IN AND FOR
The COUNTY OF LAKE, and the Honorable C. E. Comer,
Judge thereof, Respondents.
No. 9510.
Supreme Court of Montana.
Feb. 2, 1955.

Page 692

[128 Mont. 540] Raymond F. Gray, Ronan, for relator.

Lloyd I. Wallace, F. N. Hamman, Polson, argued orally for respondent.

DAVIS, Justice.

Prohibition on the relation of Wesley Adamson, the administrator of the estate of Elmer W. Adamson, deceased, to restrain the district court for Lake County from further proceedings in the probate of that estate.

An alternative writ has issued, and return thereto has been made (1) by motion to quash supported by the affidavit of counsel, and (2) by submitting the original files of the respondent court disclosing the proceedings had there in the challenged probate.

After oral argument and briefs filed the cause is now submitted for decision.

By way of preliminary we note that the return made here to our writ is both novel and irregular; but in the view we take of the matter without prejudice to the rights of the litigants. That is, we shall exclude from our consideration of the facts the affidavit of respondents' counsel, which is not under any construction the answer permitted by R.C.M.1947, Secs. 93-9204 and 93-9106. We shall consider the files of the respondent court offered and received at the oral argument without objection as the answer to the relator's affidavit (here a verified petition), [128 Mont. 541] which these statutes authorize. We suggest, however, that hereafter the applicable provisions of the Code be followed.

In the record thus made up we find there undisputed facts:

On November 10, 1953, the relator gave bond in the penalty of $4,000 and took letters of administration upon the estate here in controversy out of the respondent court and by order of the respondent judge. Hereafter we shall refer to these parties as they were below.

By December 7, 1954, the administrator had (1) published notice to creditors; (2) taken the court's decree establishing that notice; (3) returned inventories and appraisements showing the value of the estate to be $10,954.07, consisting of cash in bank, United States and postal savings bonds, 3,000 shares of stock of inconsequential value, and an undivided interest in certain real estate in Lake County; (4) filed two claims for himself against the estate aggregating $1,100.18 which were approved and paid; (5) made the preliminary report required for inheritance tax purposes; and (6) demanded of the decedent's daughter and sole heir, Phyllis Adamson Conlon, that she turn over to him as estate moneys upwards of $1,700 which he claimed she was withholding, and which she refused to pay into the estate.

Also up to December 7, 1954, the administrator had not presented the exhibit required by R.C.M.1947, Sec. 91-3501, nor the account required by R.C.M.1947, Sec. 91-3507, although the time for the presentation of claims had expired on April 17, 1954. The estate is not indebted; yet the final report for the determination of the inheritance tax has not been filed.

On September 29, 1954, Mrs. Conlon, the heir, had asked the administrator to 'file his Final Account and Petition for distribution without further delay.' On December 7, 1954, she petitioned the court for a citation to compel him to do so.

That same day on this petition the court (1) ordered a citation to issue directing the administrator to account, (2) issued the citation so ordered, (3) ordered the deposit

Page 693

with its clerk of all the estate property, and (4) ordered further and separately the impounding of the estate moneys in bank.

[128 Mont. 542] The court also required the administrator to give an additional bond in the penalty of $6,000, but since no complaint is made of this order we shall notice it no further.

On December 14, 1954, the administrator appealed to this court from the three orders first summarized above and from the citation as well.

Further on December 14, 1954, the administrator as ordered deposited certain bonds and shares of stock belonging to the estate, which he said under oath were 'all of the property that I have on hand with the exception of the bank account, which is now being withheld pursuant to the order of the Court.' This statement is not disputed by the record.

At the same time the administrator filed what he styles 'Affidavit of Report of Administrator,' which obviously is not, however, the exhibit or the account which the statutes cited above call for, primarily, because it does not show the 'amount of money received and expended by him,' as section 91-3501, supra, requires. Therein he sought to excuse his failure to close the estate, because (1) 'I have reason to believe that there is mining property or an interest in mining property somewhere in the Territory of Alaska and that the said Phyllis Adamson Conlon has knowledge or information concerning the same,' and because (2) 'up to this time I have not received a report of the amount of money belonging to the above entitled estate that is being withheld by Phyllis Adamson Conlon.'

Possibly here the administrator has shown cause why he has not closed the estate, for undoubtedly he needs to know the nature and value of all the estate property both within and without Montana to settle the inheritance tax due. Probably it would be an idle gesture to require the sole heir to turn over moneys with her, which must be immediately returned to her upon a final distribution, i....

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12 practice notes
  • State ex rel. Tripp v. District Court of Fourth Judicial Dist. In and For Missoula County, No. 9546
    • United States
    • Montana United States State Supreme Court of Montana
    • 5 Enero 1957
    ...and adequate remedy regardless of whether the appealable order complained of be valid or void. State ex rel. Adamson v. District Court, 128 Mont. 538, 279 P.2d 691, at page The law providing the remedy and prescribing the procedure to be followed to empower and authorize the supreme court t......
  • In re Johnson, No. 2 CA–CV 2012–0076.
    • United States
    • Court of Appeals of Arizona
    • 19 Diciembre 2012
    ...(8th Cir.1999); Smiley v. Atkinson, 12 Md.App. 543, 280 A.2d 277, 281–82 (1971); [293 P.3d 508]Montana ex rel. Adamson v. District Court, 128 Mont. 538, 279 P.2d 691, 694–95 (1955). ¶ 11 A notice of appeal that is ineffective and a nullity under Craig should not interrupt the trial court pr......
  • United Accounts, Inc. v. Teladvantage, Inc., Nos. 920235
    • United States
    • United States State Supreme Court of North Dakota
    • 27 Abril 1993
    ...64 Md.App. 409, 496 A.2d 695, 699-700 (1985); Spaeth v. City of Plymouth, 344 N.W.2d 815, 825-826 (Minn.1984); State v. District Court, 128 Mont. 538, 279 P.2d 691, 694 (1955); Berger v. Berger, 67 N.C.App. 591, 313 S.E.2d 825, 829 (1984); Venable v. Venable, 3 Ohio App.3d 421, 445 N.E.2d 1......
  • Reaves v. Tucker, Record No. 1546-16-2
    • United States
    • Virginia Court of Appeals of Virginia
    • 13 Junio 2017
    ...its jurisdiction to proceed with the trial of the case and resolve the issues before it."); Montana ex rel. Adamson v. District Court , 128 Mont. 538, 279 P.2d 691, 694 (1955) (reasoning that where there is no statutory support for the filing of a notice of appeal, "the lower court and its ......
  • Request a trial to view additional results
12 cases
  • State ex rel. Tripp v. District Court of Fourth Judicial Dist. In and For Missoula County, No. 9546
    • United States
    • Montana United States State Supreme Court of Montana
    • 5 Enero 1957
    ...and adequate remedy regardless of whether the appealable order complained of be valid or void. State ex rel. Adamson v. District Court, 128 Mont. 538, 279 P.2d 691, at page The law providing the remedy and prescribing the procedure to be followed to empower and authorize the supreme court t......
  • In re Johnson, No. 2 CA–CV 2012–0076.
    • United States
    • Court of Appeals of Arizona
    • 19 Diciembre 2012
    ...(8th Cir.1999); Smiley v. Atkinson, 12 Md.App. 543, 280 A.2d 277, 281–82 (1971); [293 P.3d 508]Montana ex rel. Adamson v. District Court, 128 Mont. 538, 279 P.2d 691, 694–95 (1955). ¶ 11 A notice of appeal that is ineffective and a nullity under Craig should not interrupt the trial court pr......
  • United Accounts, Inc. v. Teladvantage, Inc., Nos. 920235
    • United States
    • United States State Supreme Court of North Dakota
    • 27 Abril 1993
    ...64 Md.App. 409, 496 A.2d 695, 699-700 (1985); Spaeth v. City of Plymouth, 344 N.W.2d 815, 825-826 (Minn.1984); State v. District Court, 128 Mont. 538, 279 P.2d 691, 694 (1955); Berger v. Berger, 67 N.C.App. 591, 313 S.E.2d 825, 829 (1984); Venable v. Venable, 3 Ohio App.3d 421, 445 N.E.2d 1......
  • Reaves v. Tucker, Record No. 1546-16-2
    • United States
    • Virginia Court of Appeals of Virginia
    • 13 Junio 2017
    ...its jurisdiction to proceed with the trial of the case and resolve the issues before it."); Montana ex rel. Adamson v. District Court , 128 Mont. 538, 279 P.2d 691, 694 (1955) (reasoning that where there is no statutory support for the filing of a notice of appeal, "the lower court and its ......
  • Request a trial to view additional results

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