State v. Second Judicial District Court
| Decision Date | 28 September 1896 |
| Citation | 46 P. 259,18 Mont. 481 |
| Parties | STATE ex rel. BARTLETT v. SECOND JUDICIAL DISTRICT COURT. |
| Court | Montana Supreme Court |
Application by Henry R. Bartlett, special administrator of the estate of John F. Kelly, deceased, for a writ of review to the district court of the Second judicial district, and for the annulment of an order of said court. Writ granted and order annulled.
H. R Bartlett, special administrator of the estate of John F Kelly, deceased, petitions the court to issue a writ of review commanding the district court of the Second judicial district to certify to this court a transcript and record of the proceedings considered by said district court in the matter of the estate of said John F. Kelly, deceased, and the petition of Mary Ellen Kelly for an order directing the special administrator to pay the indebtedness of the First National Bank of Butte, and the order of the district court directing the payment thereof. The petitioner alleges that the district court had no jurisdiction or authority to make the order directing the special administrator to pay the indebtedness of said bank. The affidavit of H. R. Bartlett sets forth that he is the special administrator of the estate of John F. Kelly, deceased; that said Kelly died on April 16 1896; that on April 18, 1896, affiant offered for probate in said district court a document purporting to be the last will and testament of said deceased, and dated April 18, 1896 wherein deceased made bequests to various relatives amounting to the sum of $22,000, and bequeathed the residue of his estate to his widow and minor child; that on April 18, 1896 the district court duly made on order appointing this petitioner special administrator to collect and take charge of the estate, and exercise such other powers as might be necessary for the preservation of the estate, and to do such further acts as might be ordered by the court; that bonds were given and approved; that on April 29, 1896, the said Mary Ellen Kelly, the wife of the deceased, for herself and as guardian of her minor child, filed objections and contest to the probate of the document purporting to be the last will and testament of the deceased. Petitioner also avers that the petition for probate and the contest are still pending and undetermined; that, as special administrator, he proceeded to take charge of and collect the property and effects of the deceased, and realized the sum of about $83,000, which he still has on hand. On August 3, 1896, the said Mary Ellen Kelly filed in the district court a petition setting forth, among other things, that the special administrator was in possession of about $90,000, and that the estate was indebted to the First National Bank of Butte in the sum of $67,000, which was drawing interest at the rate of 10 per cent. per annum, and secured by first lien upon the real property belonging to the estate; that no claim had been presented by the bank for said sum, but she prayed for an order directing the special administrator to pay out of the funds then in his hands the indebtedness so owing to the bank, together with accrued interest. On August 5, 1896, the special administrator filed his answer to the petition of the widow, saying that he had no knowledge of the indebtedness to the bank, for the reason that no claim had been presented therefor, and that he was informed and believed that there were a great many claims and demands against the estate, but could not state the nature, character, or amount thereof. He also set forth other matter in his answer, much of which is immaterial to the question raised by this proceeding. It is averred that on August 11, 1896, the judge of the district court, at chambers, made an order wherein the court found that the estate was indebted to the First National Bank of Butte in the sum of $69,381.37, which was interest-bearing, and secured by deed of trust, and was a first lien on the real property belonging to the estate. The court also found that the estate was solvent, and that the assets were sufficient to pay all the debts and liabilities of the estate. The Honorable John J. McHatton, judge of the Second judicial district court, for his return makes a transcript of the record and proceedings used and considered by him. His return sets forth the petition of Mary Ellen Kelly praying for an order requiring the special administrator to discharge the debt due the First National Bank. The special administrator's answer is also part of the return. The order appointing H. R. Bartlett special administrator recites that, as special administrator, he is ordered "to collect and take charge of the estate of the deceased, in whatever county or counties the same may be found, and to exercise such other powers that may be necessary for the preservation of the estate, and to do such further acts as may be ordered by the court," etc. It appears that the judge heard testimony before he made the order directing the special administrator to pay the indebtedness of the First National Bank. ...
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