State v. District Court of Second Judicial Dist. in and for Silver Bow County

• Decision Date: 14 February 1933
• Docket Number: 7118.
• Parties: STATE ex rel. JOHNSTON v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY.
• Court: Montana Supreme Court

19 P.2d 220

93 Mont. 439

STATE ex rel. JOHNSTON v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY.

No. 7118.

Supreme Court of Montana

February 14, 1933

Original proceeding on writ of review by the State, on the relation of Alex J. Johnston, as executor of the last will and testament of Harriet Armstrong, deceased, and as legatee and devisee in said will, against the District Court of the Second Judicial District, in and for Silver Bow County, in which respondent filed a motion to quash.

Motion sustained and proceeding dismissed.

Miles J. Cavanaugh and H. C. Hopkins, both of Butte, for relator.

Loble & Adair, of Helena, and M. J. Doepker and William B. Frame both of Butte, for respondent.

MATTHEWS Justice.

Original proceeding on writ of review. On the application of Alex J Johnston, made on his affidavit filed January 18, 1933, this court caused a writ of review to issue commanding the district court of Silver Bow county to certify up its transcript of the record and proceedings in the matter of the estate and guardianship of Jennie S. Frankfort, an insane person, and in the matter of the petition to revoke the probate of the will of one Harriet Armstrong, deceased.

On the return day, January 30, 1933, the respondent court filed written motion to quash the writ and, without waiver thereof made proper return to the writ. From the record thus made, the following facts appear:

Harriet Armstrong died testate at Butte in 1931; by will she left the residue of her estate to Alex J. Johnston and Jennie S. Frankfort, share and share alike, and named Johnston executor. Jennie S. Frankfort and Harriet Armstrong were sisters. The will was admitted to probate and Johnston was appointed on December 26, 1931; Johnston duly qualified and has discharged the duties of executor since his appointment; he gave ten months' notice to creditors on December 31, 1931.

On October 29, 1932, being within two days of the expiration of the time for filing of claims against the Armstrong estate, one George Seifred filed a petition for the appointment of himself as guardian of the estate of Jennie S. Frankfort, reciting that she resides in Michigan and for years past has been, and now is, insane and wholly incompetent to transact business or look after her property, and that she has claims against the Armstrong estate which must be presented before October 31, 1932; that she has no relatives or persons interested in her estate in Montana, other than petitioner, who is a friend. It is then recited that in December, 1931, one Elizabeth Boyd was appointed by a probate court in Michigan as guardian of the person and estate of Jennie S. Frankfort, incompetent, but that the guardian died on October 1, 1932, and on October 11th, George T. Stears was duly appointed and qualified as guardian of "the person and estate" of Jennie S. Frankfort. It is then recited that Stears, as guardian, does expressly waive any and all notice, personally and for his ward.

A hearing was had on the petition forthwith and evidence adduced supporting the allegations of the petition. Petitioner introduced in evidence an exemplified copy of the appointment of Stears and a telegram waiving notice of the hearing. At the close of the taking of testimony the court, Judge William E. Carroll presiding made an order in which the facts, as above recited, are found to be true and, as a conclusion of law, declared that notice of the hearing had been duly waived and need not be given, and that prompt action is imperative, followed by the order that "no notice of the hearing of said petition need be given," and that Seifred "be and he is hereby appointed guardian of the estate of said Jennie S. Frankfort, an insane person." Letters were thereupon issued and Seifred filed his oath of office.

Thereafter, on December 24, 1932, Stears and Seifred, as guardians, joined in a petition filed in the Armstrong estate, for the revocation of the probate of the Armstrong will. Stears signed the petition as guardian of the "person and property" and Seifred as guardian "of the property" of the incompetent Jennie S. Frankfort. However, the exemplified copy of Stears' appointment in Michigan discloses that he was merely appointed "special guardian of the estate of Jennie S. Frankfort, incompetent."

On the petition to revoke the will, a citation was issued to this relator, as executor of the will of Harriet Armstrong, who appeared on January 12, 1933, by motion to quash on the ground of lack of capacity on the part of Jennie S. Frankfort to sue, and the invalidity of the appointment of Seifred as her guardian, and served written demand upon counsel to produce their authority to proceed against the probate of the will. All proceedings were then stayed until February 4, 1933. Thereupon the executor made application for the writ of review herein issued, seeking that the order appointing Seifred guardian be set aside and the proceeding to revoke the will "based upon said void order" be dismissed.

Urging the motion to quash the writ, counsel for respondent insist that the right of the relator to the writ must rest solely upon his beneficial interest in the Jennie S. Frankfort estate, or lack thereof, and seek to eliminate consideration of the Armstrong estate entirely, but, as noted above, the application for the writ, and the writ itself, challenge the jurisdiction of the court over the interwoven estates of the two sisters, Frankfort and Armstrong.

The affidavit of relator alleges that he i...