Walker Bank and Trust Company v. Steely, 6078

• Citation: 34 P.2d 56,54 Idaho 591
• Decision Date: 21 June 1934
• Docket Number: 6078
• Parties: WALKER BANK AND TRUST COMPANY, a Corporation, Respondent, v. BERTRICE H. STEELY, Executrix of the Estate of OSCAR B. STEELY, Deceased, and BERTRICE H. STEELY, Individually, Respondents, and HOBART H. STEELY, MARY I. STEELY MAXON, BERTRICE EVELYN STEELY, Sometimes Written BERTRICE E. STEELY, THE FIRST NATIONAL BANK OF POCATELLO, IDAHO, Guardian of OSCAR B. STEELY, a Minor, Intervenors, Appellants
• Court: Idaho Supreme Court

34 P.2d 56

54 Idaho 591

WALKER BANK AND TRUST COMPANY, a Corporation, Respondent, v. BERTRICE H. STEELY, Executrix of the Estate of OSCAR B. STEELY, Deceased, and BERTRICE H. STEELY, Individually, Respondents, and HOBART H. STEELY, MARY I. STEELY MAXON, BERTRICE EVELYN STEELY, Sometimes Written BERTRICE E. STEELY, THE FIRST NATIONAL BANK OF POCATELLO, IDAHO, Guardian of OSCAR B. STEELY, a Minor, Intervenors, Appellants

No. 6078

Supreme Court of Idaho

June 21, 1934

APPEAL AND ERROR-COMPLAINT IN INTERVENTION-ORDER OF DISMISSAL-APPEALABLE ORDERS-UNDERTAKING, SUFFICIENCY OF-WAIVER OF DEFECTS-PROBATE COURT-JURISDICTION-JUDGMENTS-COLLATERAL ATTACK-EXECUTORS AND ADMINISTRATORS-POWERS AND DUTIES.

1. In action to foreclose mortgage on deceased's realty executed by executrix, order dismissing complaint in intervention of deceased's children attacking validity of mortgage held final appealable "judgment" (I. C A., secs. 7-701, 11-201).

2. Undertaking on appeal from order dismissing complaint in intervention, though not specifying court to which appeal was taken nor designating particular section of statute providing for undertaking, held not void but merely defective (I. C A., sec. 11-203).

3. Where respondent did not serve on appellants or their attorneys written notice pointing out defects of undertaking on appeal within twenty days of filing bill, defects were waived (I. C. A., sec. 11-203).

4. In action to foreclose mortgage on deceased's realty executed by executrix, complaint in intervention of deceased's children attacking validity of mortgage held collateral attack on probate court's order authorizing executrix to borrow money and execute mortgage.

5. When probate court's jurisdiction once attaches to estate of deceased person, it continues until property belonging to estate is distributed and estate is closed (Const., art. 5 sec. 21).

6. Probate court's failure to direct executrix, after sale of greater portion of deceased's estate, to deliver possession of remaining realty to deceased's heirs or devisees, even if it were probate court's duty to do so on failure of executrix to perform such duty, did not deprive court of jurisdiction of estate and property belonging thereto (I. C. A., secs. 1-1203, 15-410, 15-411; Const., art 5, sec. 21).

7. Executrix retained all powers and duties of executrix provided by law so long as she remained executrix, even if she failed to perform statutory duty of distributing realty to heirs or devisees (I. C. A., secs. 15-410, 15-411).

8. Orders and decrees of probate court import verity and cannot be collaterally attacked (I. C. A., sec. 1-1203; Const., art. 5, sec. 21).

9. Probate proceeding, whereby probate court asserts jurisdiction over deceased's estate for administration, is in nature of proceeding in rem, and all world is charged with notice thereof (I. C. A., sec. 1-1203; Const., art. 5, sec. 21).

10. Probate court having acquired jurisdiction of decedent's estate, parties, and subject matter, its order authorizing executrix to mortgage specified realty for expense of alteration and repair could not be collaterally attacked by decedent's heirs intervening in action to foreclose mortgage, intervenors' remedy being by appeal from order, or by motion or other proceeding in probate court to have order set aside (I. C. A., secs. 1-1203, 15-410; C. S., secs. 7668 and 7669, as amended by Laws 1927, chap. 247).

11. Petition of executrix asking authority to mortgage certain of deceased's realty to pay expense of repairing and remodeling held sufficient to require probate court to inquire whether executrix should be permitted to give mortgage (C. S., secs. 7668 and 7669, as amended by Laws 1927, chap. 247).

12. Even if executrix's petition, seeking authority to mortgage deceased's realty to pay for repairing and remodeling thereof, failed to set forth some essential facts, such failure did not invalidate subsequent proceedings if defect was supplied by proof at hearing (C. S., secs. 7668 and 7669, as amended by Laws 1927, chap. 247).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Guy Stevens, Judge.

Action to foreclose mortgage. Appeal from order dismissing complaint in intervention. Affirmed.

Judgment affirmed, with costs allowed to respondent.

W. H. Witty, and Jones, Pomeroy & Jones, for Appellants.

The executrix had no authority to continue the business of the deceased testator as a going concern. (11 R. C. L., secs. 142, 143; 24 C. J., p. 55, sec. 474; 24 C. J., p. 58, sec. 476; I. C. A., sec. 15-411; In re S. Marks & Co.'s Estate, 66 Ore. 340, 133 P. 777, at p. 778.)

The probate court was without authority and had no jurisdiction to make the order authorizing the mortgage involved in this action. (I. C. A., sec. 15-903; Sterrett v. Barker, 119 Cal. 492, 51 P. 695; Howard v. Bryan, 133 Cal. 257, 65 P. 462, and cases cited under point 1.)

The test as to whether or not an order which is not specifically provided for by statute is an appealable order is whether or not it finally terminates the action between the litigants and whether there is anything further for the court to do. ( County Court of City and County of Denver v. Eagle Rock Gold Min. & Reduction Co., 50 Colo. 365, 115 P. 706; Robertson v. Yarbrough, 160 Ark. 223, 254 S.W. 492; State v. Third Judicial Dist. Court for Salt Lake County, 36 Utah 223, 102 P. 868.)

Black & Baum for Respondent.

The order appealed from is not an appealable order. The undertaking on appeal is void. (Secs. 11-201, 11-203, I. C. A.; Durant v. Comegys et al., 3 Idaho 67, 26 P. 755, 35 Am. St. 267; Bissing v. Bissing, 19 Idaho 777, 115 P. 827.)

The probate court had jurisdiction of the will and all heirs in the probate proceedings and of the petition to mortgage and the order authorizing a mortgage, and no appeal having been taken therefrom, became binding on appellants; the order or judgment authorizing mortgage is not subject to collateral attack in the instant case. The order authorizing the mortgage by the probate court was not void on its face. Such an order imports verity and that there was sufficient evidence to establish the jurisdictional facts necessary to sustain the judgment. (Daniels v. Isham, 40 Idaho 614, 624, 235 P. 902; Ward v. Board of Commrs., 12 Okla. 267, 70 P. 378; Estate of Barr, 43 Idaho 400-404, 252 P. 676; In re Brady, 10 Idaho 366, 79 P. 95; Estate of McVay, 14 Idaho 56, at 67, 93 P. 28.)

The only time that judgments or orders of probate courts in probate matters can be collaterally attacked is when the attack is based on fraud or lack of jurisdiction. The presumption of regularity attending decrees and judgments of courts of record, generally will operate to sustain its orders. (Harkness v. Utah Power & Light Co., 49 Idaho 756-760, 291 P. 1051; Kline v. Shoup, 38 Idaho 202, 226 P. 729.)

WERNETTE, J. Budge, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

WERNETTE, J.

Respondent herein, Walker Bank and Trust Company, instituted this action to foreclose a real estate mortgage.

It appears that Oscar B. Steely, deceased, died testate, June 27, 1920, leaving as heirs four children, Hobart H. Steely, Mary I. Steely Maxon, Bertrice Evelyn Steely, Oscar B. Steely, and his wife, the children's mother, Bertrice H. Steely. The will of the deceased, Oscar B. Steely, was admitted to probate, and July 23, 1920, Bertrice H. Steely, wife of deceased, was duly appointed and now is the executrix of the estate. By the terms of the will the children, appellants herein, were bequeathed an undivided one-half interest of all the estate, which included the real property involved in this litigation. About eight years after her appointment as executrix, Bertrice H. Steely filed a petition for the sale of certain of the real property belonging to the estate, alleging, in substance, among other things, that the only practical method for closing the estate within a reasonable time was by the sale of sufficient real estate to satisfy all of the indebtedness of the estate, such indebtedness consisting of $ 4,453.06, with interest thereon at seven per cent, being an unsecured account, and $ 20,000, principal and interest thereon, being secured by mortgage, the current expenses that had accrued in administering the estate, and that the debts, expenses and charges of administration accrued on said estate up to and including the 23d day of October, 1926, amounted to the sum of $ 47,290.41, said sum including all operating expenses of the estate, and the family allowance; that an estimate by petitioner of the debts, expenses and charges of administration which had and would accrue during the administration of the estate was the sum of $ 10,000, and that there was then due on the family allowance the sum of $ 500, and "that by selling said real estate the residue of the real property in said estate will be free and unencumbered, and from the proceeds of the sale proposed to be made, petitioner can pay all of the debts of said estate, and the same can then be closed and distribution made. . . ." March 3, 1928, Bertrice H. Steely, as executrix, was authorized by the probate court to make a sale of the property described in her petition for the sum of $ 40,000, which sale was confirmed by the court March 28, 1928. Later, December 28, 1928, Bertrice H. Steely, as executrix, by her petition applied to the probate court for permission to borrow $ 8,000, on certain real property belonging to the estate, being the property in controversy here, and to execute a mortgage for the said amount on such real estate. It was recited in the petition that the money was to be borrowed for the following purposes:

"Expenses of administration.

"That the following is a statement of the expenses of...