State v. District Court of Fifth Judicial Dist. in and for Madison County

• Decision Date: 18 April 1921
• Docket Number: 4826.
• Citation: 197 P. 741,59 Mont. 505
• Parties: STATE EX REL. PEEL ET AL. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY ET AL.
• Court: Montana Supreme Court

197 P. 741

59 Mont. 505

STATE EX REL. PEEL ET AL. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY ET AL.

No. 4826.

Supreme Court of Montana

April 18, 1921

Original proceeding by the State, on the relation of Richard Peel and Alfie Elling, to procure writ of supervisory control, or other appropriate writ, directed to the District Court of the Fifth Judicial District in and for the County of Madison, and Hon. Joseph R. Jackson, Acting Judge thereof. Writ of mandate ordered to issue forthwith.

M. M Duncan and E. P. Reid, both of Virginia City, for respondents.

GALEN J.

This is an original proceeding wherein a writ of supervisory control or other appropriate writ is sought, directed to the district court of Madison county and Joseph R. Jackson, acting judge thereof.

An order to show cause was issued on the filing of the verified petition herein, and the case came on for hearing and argument on motion to quash the order and dismiss the petition. It appears that Horace B. Elling, a resident of Madison county, died on September 22, 1920, leaving estate therein. At the time of his death he was 43 years old, and died intestate. On October 13, 1920, Alfie Elling, claiming to be his widow, filed her petition for letters of administration of the estate; to this petition Mary B Elling, mother of the deceased, filed objections, and nominated G. G. Wheat as her candidate for letters, and on November 13 he filed his petition praying for the issuance to him of letters of administration. Thereafter, on November 30 Alfie Elling filed with the clerk of the court a præcipe withdrawing her application for letters, and filed in lieu thereof her nomination of the relator, Richard Peel, who at the same time filed his petition praying for the issuance to him of letters of administration based upon her nomination. Both petitions were set for hearing on December 10, 1920. On that date, G. G. Wheat, as such petitioner, filed motion to strike from the files Alfie Elling's nomination of Richard Peel and Peel's petition for letters of administration; and on the same day the motions were brought on for hearing and evidence taken by the court in support thereof. Later, both the motions were by the court granted. The petitions and counter-petitions filed were not then, or at all, otherwise heard, considered, or decided; and it is the orders made and entered sustaining these motions to strike of which complaint is made. The contention upon the motions was, in substance, that Alfie Elling, having petitioned for letters (though later withdrawing same) foreclosed her right to nominate, if any she ever had; that Alfie Elling was never entitled to make such nomination; that she had, on June 20, 1902, undergone a marriage ceremony with Horace B. Elling, and from that time sustained with him the relation of husband and wife, yet she never was his wife, and is not his widow, because, at the time of her marriage with him, she was the lawful wife of another. It was conceded that prior to the marriage ceremony she had secured from the district court of Madison county, Mont., what appears to be a decree of divorce from her previous husband, Theodore Johnson, and the contention made in support of the motions to strike consists of a collateral attack upon the legality of the decree of divorce.

In our opinion, the only question of several presented which we are called upon to decide is whether the district court, sitting in probate on the hearing of preliminary motions, was authorized to entertain and determine a collateral attack made upon the judgment of a court of competent jurisdiction, thus depriving relators of opportunity to participate in the final hearing, and permit them, should they desire, to make a record upon which the merits of the application might be presented to this court for review on appeal. Solution of this question necessarily involves the remedy applicable.

It is manifest from the recitals contained in the petition before us that Richard Peel is entitled to a hearing upon the merits of his petition for letters, nominated as he was by Alfie Elling, claiming to be the widow of Horace B. Elling, deceased. It appears to us that the court acted arbitrarily and without warrant in legal procedure when, by its orders, the relator's petition and nomination were stricken from the files on motion, without according them a hearing upon the merits. They were clearly entitled to their day in court, which was denied them by the sustaining of the motions to strike.

Section 7432 of the Revised Codes provides in part as follows:

"Administration of estate of all deceased persons dying intestate, must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof, and they are, respectively, entitled therein 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," etc.

Upon the face of Peel's petition for letters, and of his nomination as administrator, it is made to appear that Alfie Elling is the surviving wife of the deceased, and, as such, she is prima facie entitled to have letters of administration issued to her, or to some competent person by her designated, in preference to the surviving mother of the deceased. As pointed out under the statute, first in right comes the widow, or some competent person whose appointment she may request, and then the children, if any, and third, the mother.

Alfie Elling, if the widow of Horace B. Elling, deceased, has an absolute right to control in limine the administration of her late husband's estate; and for such purpose may either administer it herself or nominate some competent person in whom she places trust and confidence. In re Blackburn's Estate, 48 Mont. 179, 137 P. 381; State ex rel. Cotter v. District Court, 49 Mont. 146, 140 P. 732; In re Watson's Estate, 31 Mont. 438, 78 P. 702.

There is no merit in the contention made by counsel that Alfie Elling, by petitioning to have letters issued to her as administratrix, thereby foreclosed her right to nominate a suitable person in her stead, even though objections were filed against her appointment. In limine she had the right to appointment, as the surviving wife of the deceased, or, as an alternative, to nominate some one in her stead. In re Dolenty's Estate, 53 Mont. 49, 161 P....