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

• Court: Montana Supreme Court
• Writing for the Court: BRANTLY, C.J.
• Citation: State v. District Court of Second Judicial District in and for Silver Bow County, 176 P. 608, 55 Mont. 324 (Mont. 1918)
• Decision Date: 02 December 1918
• Docket Number: 4288.
• Parties: STATE ex rel. McHATTON v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT IN AND FOR SILVER BOW COUNTY et al.

176 P. 608

55 Mont. 324

STATE ex rel. McHATTON v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT IN AND FOR SILVER BOW COUNTY et al.

No. 4288.

Supreme Court of Montana

December 2, 1918

Certiorari by the State, on the relation of John J. McHatton, against the District Court of the Second Judicial District in and for the County of Silver Bow, and John V. Dwyer, Judge thereof to have annulled an order of said court setting aside a final decree settling account of relator as guardian, etc. Order annulled to the extent that it set aside decree.

John J McHatton, of Butte, for relator.

James E. Murray, of Butte, for respondents.

BRANTLY C.J.

Certiorari to the district court of Silver Bow county. On October 22 1912, Sarah A. Pryor, a resident of Silver Bow county, was adjudged by the district court of that county to be incompetent, and by the same court the relator was appointed guardian of her person and estate. Having qualified as provided by law, the relator entered upon a discharge of his duties and continued therein under the direction of the court until the death of his ward, which occurred on December 7 1917. She left a will executed on June 8, 1908, in which the relator was named executor. On January 12, 1918, the will was admitted to probate, and the relator was appointed executor and assumed the discharge of his duties as such. On May 18, 1918, the relator presented for settlement his final report and account in the guardianship proceeding. The court set it for hearing on June 1st. The Hearing having been continued from time to time, was finally had on July 12th, and resulted in a final decree approving and settling the account and directing the relator to assume possession and control of the estate as executor. On September 10th the court made and entered an order setting aside the decree and directing the matter of settlement of the account to be reopened and placed on the calendar to be set for hearing at some future time. Thereupon the relator instituted this proceeding to have the order annulled as in excess of jurisdiction.

It does not appear, from the certified copy of the record returned in obedience to the writ, on what ground the district court set aside the decree of settlement. Nor does it appear that this action was had in response to a motion by any one or that the relator had notice or was present. Apparently the court set aside the decree on its own motion.

In his general report of the condition of the estate accompanying the account, the guardian set forth a schedule of the property remaining in his hands, which consisted of a small sum in cash and undivided interests in six mining claims situate in Silver Bow county, which in the original appraisement of the ward's estate were valued in the aggregate at $96,250; the report reciting that the guardian had executed a lease of these interests subject to the approval of the court, by the terms of which one Tinkler, a resident of Silver Bow county, had been given an option to purchase said interests for the sum of $75,000, the payments to be made in installments as therein provided, in case Tinkler concluded to exercise his option. He also set forth that he had incurred an indebtedness to the authorities of the St. James Hospital in Butte for the care and maintenance of his ward, for $4,276.35.

Counsel who appeared for the court state in their brief that the decree of settlement was set aside because the court, after further consideration of it, was of the opinion that in approving the account and accompanying report it had approved the option lease and adjudged the indebtedness incurred by the guardian as a just claim against the ward's estate,...