Williams' Estate, Matter of

• Decision Date: 25 March 1976
• Docket Number: No. 11583,11583
• Citation: 90 S.D. 173,240 N.W.2d 74
• Parties: In the Matter of the ESTATE of A. J. WILLIAMS, Deceased. LaVon W. HETRICK, Petitioner and Appellant, v. Maxine Y. WILLIAMS, Petitioner and Respondent.
• Court: South Dakota Supreme Court

Page 74

240 N.W.2d 74

90 S.D. 173

In the Matter of the ESTATE of A. J. WILLIAMS, Deceased.

LaVon W. HETRICK, Petitioner and Appellant, v. Maxine Y. WILLIAMS, Petitioner and Respondent.

No. 11583.

Supreme Court of South Dakota.

March 25, 1976.

Keith A. Tidball of Tidball, Kemnitz & Lovald, Pierre, for petitioner and appellant.

William G. Porter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for petitioner and respondent.

WOLLMAN, Justice.

Appellant has appealed from an order that denied her petition asking that letters of administration with the will annexed of the estate of A. J. Williams, deceased, be issued to her nominee, Kenneth W. Steele, and that granted a petition for letters of administration with the will annexed filed by Maxine Y. Williams. We affirm.

Following the death of A. J. Williams on September 16, 1967, his daughter, LaVon W. Hetrick, appellant herein, contested his will and appealed the order of the circuit court upholding the will. We affirmed the circuit court's decision on February 20, 1974. See In re Estate of Williams, S.D., 215 N.W.2d 489. During the pendency of the contest proceedings, James J. Curran, the alternate executor named in decedent's will (the designated executor having filed a declination), served as special administrator until his death on July 3, 1973, following which Maxine Y. Williams, widow of decedent's son Pierre Williams, and mother and duly appointed guardian of her three minor children, who are beneficiaries under decedent's will, was appointed special administratrix of decedent's estate.

Appellant, who is the beneficiary of a trust created under decedent's will, the trust to consist of an undivided one-fourth of decedent's property, filed her petition on April 8, 1974; Maxine Y. Williams filed her petition on May 6, 1974.

At the hearing on the petitions, counsel for appellant alleged that it was necessary that a disinterested third party be named administrator in view of the hostility and conflicts that existed between appellant and the other heirs and beneficiaries of decedent's estate, and further alleged that certain lands owned by Williams Land Co., the majority of the stock of which is owned by decedent's estate, had been leased by decedent's surviving son for $1.00 an acre. Although given opportunity by the trial court to do so, appellant offered no evidence to support these allegations or to establish the qualifications of Mr. Steele to act as administrator with the will annexed.

In a lengthy, carefully prepared memorandum opinion, later incorporated in the findings of fact and conclusions of law, the trial court ruled that because neither appellant nor Maxine Y. Williams had furnished the court with any facts upon which it could properly exercise its discretion whether to appoint appellant's nominee, the court as a matter of law was required to grant Maxine Y. Williams' petition for letters of administration inasmuch as she occupied the same order of preference that her children would occupy were they not minors.

Appellant contends that the trial court erred in holding that her nominee did not have preference over Maxine Y. Williams and in failing to take judicial notice of the records and files in the previous proceedings concerning the estate, which, appellant contends, amply support appellant's contentions concerning the hostility and conflicts that exist between her and Maxine Y. Williams and decedent's heirs and beneficiaries.

SDCL 30--8--12 provides:

'If the sole executor or all the executors are incompetent, or renounce or fail to apply for letters, or qualify, letters of administration with the will annexed must be issued to the surviving spouse, next of kin, or others, in the same order and manner as is directed in §§ 30--9--1 to 30--9--5, inclusive.'

SDCL 30--14--11 provides:

'If all such executors or administrators die, resign, renounce, or become incapable, or the power and authority of all of them are revoked, the circuit court must issue letters of administration, with the will annexed or otherwise, to the widow or next of kin, or others, in the same order and manner as is directed in relation to original letters of administration on such notice as the court may direct. The administrators so appointed must give bond in like penalty, with like sureties and conditions as required of administrators in chapter 30--13, and shall have like power and authority.'

SDCL 30--9--1 provides in part that:

'Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:

(2) The children;

(6) The grandchildren;

* * *.'

SDCL 30--9--4 provides in part that 'Administration may be granted to one or more competent persons, though not entitled to the same, at the written request of the person entitled, filed in the court. * * *'*

We conclude that the trial court was correct in ruling that a nominee named by a person having a preferential right of appointment under SDCL 30--9--1 is not entitled to letters of administration as a matter of absolute right, the court having discretion to appoint such nominee or someone else in a lower order of preference. In re Bedell's Estate, 97 Cal. 339, 32 P. 323; In re Healy's Estate, 122 Cal. 162, 54 P. 736; In re Brundage's Estate, 141 Cal. 538, 75 P. 175; In re Enochs' Estates, Okl., 322 P.2d 197; Bancroft's Probate Practice, 2d Ed. § 254; Annot. 113 A.L.R. 780.

Likewise, the trial court was correct in ruling that as the duly appointed guardian of her minor children, Maxine Y. Williams stood in the same order of preference that her children would have under SDCL 30--9--1(6), by virtue of SDCL 30--9--7, which states that:

'If any person entitled to administration is a minor or an incompetent person, letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court.'

In construing a statute substantially similar to SDCL 30--9--7, the California Supreme Court held that the guardian of a minor stands on an equal plane with all others within the same class of preference as the minor, and that the words 'or...