Vaught v. Struble

• Decision Date: 16 December 1941
• Docket Number: 6884
• Citation: 63 Idaho 352,120 P.2d 259
• Parties: J. K. VAUGHT, Appellant, v. S. W. STRUBLE, Respondent
• Court: Idaho Supreme Court

120 P.2d 259

63 Idaho 352

J. K. VAUGHT, Appellant, v. S. W. STRUBLE, Respondent

No. 6884

Supreme Court of Idaho

December 16, 1941

EXECUTORS AND ADMINISTRATORS-APPOINTMENT OF-PRIORITIES IN RIGHT OF ADMINISTRATION-PUBLIC ADMINISTRATOR-COURTS-APPEAL FROM PROBATE COURT.

1. The right of appeal is purely statutory.

2. The right of appeal from probate court to district court is wholly of statutory regulation, and, where right of appeal is challenged, it must appear from provisions of statute that such appeal is provided for. (I. C. A. sec. 11-401, as amended by Sess. L. 1935, c. 71.)

3. An appeal to district court from an order of probate court denying a motion for change of venue, or to correct the record, or to strike, is not authorized by statute. (I. C. A sec. 11-401, as amended by Sess. L., 1935, c. 71.)

4. Under statute establishing priorities of those preferentially entitled to administer estates of decedents, trial court properly affirmed order of probate court granting letters of administration to public administrator in preference to one seeking appointment as a creditor of decedent, where public administrator appeared before probate court within reasonable time to claim issuing of letters of administration to him as public administrator. (I. C. A. secs. 15-312, 15-324.)

5. The statute establishing priorities of those preferentially entitled to administer estates of decedents is "mandatory" and, barring disqualifications, the parties named must be appointed as therein indicated. (I. C A. sec. 15-312.)

6. Under statute requiring public administrator to take charged of estates of persons dying within his county who have no known heirs, right of public administrator to take charge of estate of a decedent is contingent and subject to termination should application for appointment as administrator be made by some other person having a prior right and otherwise qualified. (I. C. A. sec. 15-1602, subd. 2.)

7. The statute requiring public administrator to take charge of estates of persons dying within his county who have no known heirs does not mean that a public administrator may not be appointed as administrator of estate of a decedent according to his classification under statute establishing priorities of those preferentially entitled to administer estates of decedents. (I. C. A. sec. 15-312; sec. 15-1602, subd. 2.)

8. The public administrator of county, which was residence of one dying intestate with known heirs residing in Sweden, could be appointed administrator of decedent's estate according to his classification under statute establishing priorities of those preferentially entitled to administer estates of decedents, notwithstanding that decedent died in another county. (I. C. A. sec. 15-312, sec. 15-1602, subd. 2.)

APPEAL from the District Court of the Fourth Judicial District of Idaho, for Camas County. Hon. Doran H. Sutphen, Judge.

Appeal by Vaught from the judgment denying administration to him and granting administration to Struble. Affirmed.

Judgment affirmed. Costs to respondent.

Leo M. Bresnahan and Frank Croner, for Appellant.

Upon appeal to the District Court from the Probate Court upon questions of law and fact, the trial is De novo, and the court should first try the questions of law separately, upon the same issues tried in Probate Court. (Kent v. Dalrymple, 23 Idaho 694, 132 P. 301; In Re McVay's Estate, 14 Idaho 64, 93 P. 31; Lemp vs. Lemp, 32 Idaho 393, 184 P. 222; Smith vs. Clyne, 15 Idaho 254, 97 P. 40; Shaw vs. McDougall, 56 Idaho 697, 58 P.2d 463.)

Letters of administration should have been granted to the appellant by the probate court as the Respondent did not show any qualifications or reason for the appointment of the Public administrator. (In Re DeNuncio's Estate, 58 Idaho 60, 70 Pac (29) 380; McCabe vs. Lewis, 76 Mo. 303; Landgraf's Estate, 168 S.W. 268 (Mo.); Bailey et al. vs. McAlpin, 48 S.E. 699 (Ga.).)

Bissell & Bird and Charles Scoggin, for Respondent.

The right to appeal is purely statutory, and no provision having been made for an appeal from an order of a probate court denying motion for change of venue, denying motion to correct record, and denying motion to strike (F 231), an attempted appeal from such order is a nullity: (Smith v. Peterson, 31 Idaho 34 169 P. 290; Weiser Irr. Dist. v. Middle Valley Etc. Co., 28 Idaho 548, 155 P. 484; Estate of Coryell, 16 Idaho 201, 101 P. 723; Const. Idaho, Art 5, sec. 11.)

This statute uses the word "must," it is mandatory and the courts must recognize the priorities fixed thereby. The public administrator is given preference over a creditor of the estate, therefore, the court was not only right in appointing Struble, but was compelled to do so in the absence of any disqualification on the latter's part: (In re Webb's Estate, 10 P.2d 947, and authorities therein cited; Schwarze v. Logan, 60 Idaho 251, 90 P.2d 692; 23 C. J. 1032; and, 21 Am. Jur. 407.)

BUDGE, C.J. Givens, Morgan, Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, C.J.

Nels Peterson, a single man, died in Boise, Ada County, on May 10, 1940, at which time he owned an estate valued at $ 27,000 located in Camas County, his place of residence. On the date of Peterson's death, appellant made application to the probate court of Camas County to be appointed special administrator of the Peterson estate which application was granted.

On June 5, 1940, appellant visited the office of the probate judge having in his possession a petition for appointment as administrator of the Peterson estate. There is evidence to the effect that the application was incomplete. June 7, 1940, appellant again visited the probate judge's office and requested all papers in connection with his application for appointment as administrator be filed as of June 5, 1940, which request was acceded to by the probate judge. However, later on a controversy arose between appellant and the probate judge as to whether or not the papers were filed or should have been filed on June 7th instead of June 5th. The trial court found that appellant's petition was filed on June 7, 1940.

On June 5, 1940, respondent, public administrator of Camas County, filed a complete application for his appointment as administrator of the estate of Peterson.

Hearings upon both applications were set for June 17, 1940. Prior to the hearing of the aforesaid applications, appellant filed with the probate court, first a motion for change of venue supported by affidavits and certain exhibits; second, a motion to correct the record to show that his application for appointment as administrator was filed on June 5, 1940, and had been incorrectly indorsed, or the indorsement changed to, June 7, 1940; third, a motion to strike directed against the petition for letters of administration to respondent filed on June 5, 1940; fourth, a motion contesting the appointment of respondent.

The motions for change of venue, to correct the record, and to strike were by the probate court denied, and the court proceeded to a hearing of the respective applications which resulted in an order denying appellant's application and granting respondent's application for appointment as administrator of the Peterson estate. From the above orders this appeal is prosecuted.

The notice of appeal contains the following language:

"* * * * the above named Appellant * * * * hereby appeals to the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Camas, from the following Orders, and each of them, of the said Probate Court, made and entered in the above entitled court and cause on or about the 17th day of June, 1940, and from the whole of said orders and each of them, to-wit:

"The Order of said Probate Court refusing to grant letters of Administration of the Estate of Nels Peterson Deceased, to the appellant, J. K. Vaught, made and entered in said Court and cause as aforesaid.

"The Order of said Probate Court granting Letters of Administration of the Estate of Nels Peterson, Deceased, to the Respondent, S.W. Struble, Public Administrator of said Camas County, Idaho, made and entered in said Court and cause as aforesaid.

"These appeals, and each of them, are taken upon questions of both law and facts."

In other words, as we construe the Notice of appeal, appellant has appealed from the order of the court refusing to grant him letters of administration, and from the order of the court granting respondent's application; that no appeal was taken from the orders of the court denying the motions for change of venue, to correct the record, and to strike.

In this connection it might be observed that the right of appeal is purely statutory, and that, there being no statute providing for an appeal from an order of a probate court denying a motion for change of venue, or to correct the record, or to strike, the attempted appeal from said orders is ineffectual.

"We believe it will at once be admitted that the right to appeal at law is and always has been purely statutory, and that the legislature may prescribe in what cases, under what circumstances and from what courts appeals may be taken." (Weiser v. Middle Valley, 28 Idaho 548, 552, 155 P. 484.)

"The right of appeal from the probate court to the district court is wholly of statutory regulation, and where the right of appeal is challenged, it must appear from the provisions of the statute that such appeal is provided for." (Estate of Coryell, 16 Idaho 201, 211, 101 P. 723; also, see Smith v. Peterson, 31 Idaho 34, 169 P. 290; State v. Ricks, 34 Idaho 122, 201 P. 827; Miller v. Gooding Highway District, 54 Idaho 154, 30 P.2d 1074.)

This appeal is governed by I. C. A., section 11-401, as amended by Chapter 71, Session Laws, 1935, which chapter...