In re Estate of Overton

TownseNd, J. The appellees have filed a motion to dismiss the appeal in this case for the reason that none of ap — 346 — pellant’s substantial rights have been prejudiced by the judgment appealed from; that he has no interest such as will entitle him to appeal; that he has not been aggrieved as executor by the judgment of the lower court; that the decision of the lower court was correct so far as his interest as executor is concerned; that he cannot appeal because the rights of other persons are violated; and that, if any one is aggrieved by the decision of the trial court, it is the minor, Daisy Overton, and as her guardian he should have excepted and prayed an appeal, if he desired the decision of the lower court reviewed. The statute regulating appeals in this court is section 1267 of Mansfield's Digest (Ind. Ter. St. 1899, § 769), and is as follows: “The appeal shall be granted as a matter of right, either by the court rendering the judgment or order, on motion made during the term at which it is rendered, or by the clerk of the Supreme Court in term time or in vacation, on application of either party.” Was not the appellant, as executor, the party making the report which was ordered modified in this case? Appellees assume in their motion that appellant, as the guardian of Daisy Overton, was a party, and bound by an order modifying his report as executor. When and where in this record is it disclosed that appellant, as guardian, was ever made a party to this report? It is pure assumption. Daisy Overton, the ward of John C. Gray., guardian, is a stranger to the proceeding. John C. Gray, as executor of the estate of William J. Overton, deceased, was before the court. Daisy Overton, the ward of John C. Gray, was not a party to this proceeding, and could not have appealed, and was not bound by an order or judgment rendered against John C. Gray, as executor. But John C. Gray, as executor, having been ordered by the court to make a distribution of the estate in a manner, as he contends, contrary to the terms and provisions of the will, took his exception, and appealed, which, in our opinion, under the statute he had a right to do;. Therefore the motion to dismiss the appeal is overruled. The appellant has filed assignments of error as follows: — 347 — “ (1) In overruling the motion to strike from the files exceptions to the third annual settlement. (2) In overruling the motion to strike from the files exceptions to third annual settlement as amended. (3) In sustaining the exceptions to the third annual settlement as amended, and making the final'order appealed from: (a) Because the $2,000 ordered administered into the estate was no part of it; (al) because the court was without jurisdiction to determine the title to this $2,000, as it was in dispute, and the order attempting so to do is coram non judice, and void; (a2) because the court was.without jurisdiction to compel this $2,000 to be brought into hotchpot; (a3) because the court was without jurisdiction to compel an election, and its order attempting so to do is eoram non judice, and void.” The first is overruling motion to strike because the exceptions were not filed in time under the statute, but were filed one day too late. No substantial right of appellant was affected by filing the exceptions one day too late, and the court very properly disregarded the same. The second is overruling motion to strike because the latter exceptions raised the same question passed on in overruling former exceptions. The amended report ordered by the court was filed December 4, 1901, and the exceptions were filed on same day, while the exceptions last filed again brought up the question, in regard to the $2,000 declared in the former ruling to be no part of the estate of William J. Overton, deceased, yet it brought to the attention of- the court the provisions of the will, and, the report not having been finally approved, we conclude it was in the discretion of the court to overrule the motion to strike. The third is sustaining exceptions to amended report and making final order. In the exceptions filed by appellees on May — 348 — 15, 1901, it is stated that John C. Gray was on the —-day of October, 1896, appointed and duly qualified as guardian and curator of the person and estate of Daisy Overton, one of the legatees of William J. Overton, deceased, and that thereafter “the said John C. Gray, as such guardian and curator, by reason of a life benefit certificate policy taken out and paid for by the said William J. Overton, deceased in the Woodmen of the World, received and collected the sum of $2,000 from said insurance company, and placed the same to the benefit and credit of said Daisy Overton, the beneficiary named in said policy, and the said John C. Gray neglects and refuses ‘to administer the same into this estate/ ” On August 7, 1901, the court, in passing upon these exceptions, found the foregoing facts to be true, but added: “It is the opinion of the court that said $2,000 is no part of the estate of William J. Overton, deceased, but the sole property of Daisy Overton, the beneficiary named in the life benefit certificate or policy, and that John C. Gray is chargeable therewith as guardian of said Daisy Overton, and not as executor of the last will and testament of William J. Overton, deceased,” etc., and refused to order it administered into the estate as prayed by exceptants. On April 17, 1902, the court, in passing upon the exceptions to the amended report filed by appellant, sustained said exceptions requiring Daisy Overton to elect, and ordered “that Daisy Overton, minor child of William J. Overton, deceased, be, and she is hereby, directed and commanded to make her election, and file the same in-days from this date, and state to the court whether she will retain the $2,000, the proceeds of the insurance policy mentioned in said will, and now in the hands of John C. Gray, her guardian, and take nothing under said will, or whether she will renounce all claim to said $2,000^ and take a distributive share under said will with said $2,000 administered into the estate of William J. Overton'.” Upon failure of said Daisy Overton to elect, as required by the foregoing, “then, and in that event, the court elects for said minor, — 349 — Daisy Overton, that she renounce said $2,000, and claim under said will (the same appearing to the court to be to her best interest), and the said John C. Gray, as executor, be, and he is hereby, directed and commanded to deduct from said $2,000 the sum of $110 as his commission thereon, and administer the remainder thereof ($1,890) into the estate of William J. Overton, deceased, and divide the same share and share alike between Bertie Overton (now Boggs), Daisy Overton and William J. Overton, and add said sum ($630) due each to the amount found due each under his third annual settlement as amended.” That this $2,000, which,' under the foregoing order, the court proposes to administer into the estate in the event Daisy Overton does not elect within-days, is no part of the estate of William J. Overton, deceased, the court so decided on August 7, 1901. The appellee concedes the fact, but', notwithstanding, the court of his own motion proposes to administer the same into the estate, and this, too, without the guardian of Daisy Overton, of Daisy Overton herself, being made a party to this proceeding. This whole proceeding is a report of appellant as executor. No order is asked in the guardianship matter of Daisy Overton, in which John C. Gray is guardian. Had John Jones been the guardian of Daisy Overton, it would never have occurred to any one that an order could be made upon him to turn over $2,000 insurance money belonging to his ward without at least getting him or his ward into court. The appellees, by their exceptions, claim this $2,000 is a part of the estate, and should be so treated, while the court said on August 7, 1901, that it was not. Yet he proposes, on April 17, 1902, to administer the same into the estate, unless the ward, who is not a party, does something within a certain time, and also proposes to order John C. Gray, who happens to be the guardian of said ward, to turn said $2,000 over to the appellant, John C. Gray, the executor of the Overton estate. The appellant, in every report filed, has never included — 350 — said $2,000 as a part of the estate, and appellees, in their exceptions filed on May 15, 1901, said “that she was not advised that the said John C. Gray, as executor, contended otherwise, until long after the filing of his final report and settlement herein' excepted to.” It thus appears that the ownership of said $2,000 was in dispute between appellant and appellees. Is this a matter within the jurisdiction of a probate court to try? The appellant says not, and quotes Woerner’s Anx Law of Ad. § 151, which says: “Since the functions of the probate courts are limited, in respect to executors or administrators, to the control of the devolution of property upon the death of its owners, it is not their province to adjudicate upon collateral questions. The right or title of deceased to property claimed by the executor or administrator against third persons, or by third persons against him, * * * must, if an adjudication becomes necessary, be tried in the courts of general jurisdiction,” etc. Same, § 317, p. 667, says: “* * * The probate court has no power to try the title to property between the personal representatives and a stranger.” Am. & Eng. Enc. Law, vol. 24 (1st Ed.) p. 988, says: “Such courts have no authority to try the title to real or personal property”; citing note 1, which says: “When a third person claims property in the hands of an administrator, the court of probate has no power to try the question of title and make an order that the administrator deliver the property to the claimant;” citing cases. If, then, the court has no power to pass upon the title and order the administrator to turn over property to a stranger, it follows that it has no power to pass upon the title and order a stranger to turn over property to him. For John C. Gray, as guardian, claiming this $2,000 for his ward, as beneficiary in the policy, and not by virtue of the will, was thus holding it as a stranger to the estate and to John C. Gray, executor. It is contended by appellant that the identical question was passed on in this court in Re Crutchfield, 3 Ind. Ten. Rep. — 351 — 590 (64 S. W. 545). In this case the controversy arose between two guardians. One claiming that the other had secured more than her share of the estate, caused the court to issue a “citation on Josie Crutchfield, guardian of Vinita Crutchfield, to appear in this court, * * * and make a full report of her actions ip said guardianship, and render a general accounting between herself as guardian of Vinita Crutchfield and Morris Frazee as guardian of Taylor Crutchfield.” In obedience to the order, Josie Crutchfield came and accounted, and the balance was against her, and the court ordered her to turn it over.' She appealed, and this court held that the court, when making the order, was sitting as a court of probate, with “only such jurisdiction as is conferred by statute; and we fail to find any statute conferring on this court any such jurisdiction as to enable it legally to make and enforce such an order as between contesting parties, strangers to each other.” And added: “The right or title of decedent to property claimed by the executor or administrator against third persons * * * must, if adjudication becomes necessary, be tried by courts of general jurisdiction;” and held the order void. In White et al vs White (Tex. Civ. App.) 32 S. W. 48, action was brought in the county court by appellants to require the appellee, executrix of J. S. White, Sr., to file a complete inventory and give bond. At the death of White he had a certificate in the Knights of Honor for $2,000, Mrs. A. V. White being named as beneficiary therein. Appellants insisted that said $2,000 should be inventoried into said estate. In the county court she was ordered “as executrix, to place on the inventory of said estate” said $2,000. She appealed from the order to the district court, where she demurred to the effect “that said county court had no jurisdiction to hear and determine the motion to compel her to place on the inventory the $2,000 collected on said benefit certificate,” etc. The district court sustained the demurrer, and the other side appealed. On final hearing the court said “that the sole and only controversy — 352 — is whether or not the money arising from the benefit certificate is the property of J. S. White’s estate or the individual property of Mrs. White. The demurrer attacks the jurisdiction of the probate court to require Mrs. White to inventory the proceeds of the benefit certificate as the property of the estate. There can be no question but that the probate court has power, in a proper case, to require an executor or administrator to file a complete inventory. * * * It is also true that, where there is a controversy as to whether certain property belongs to the estate of some individual the probate court has no jurisdiction to adjudicate such an issue. * * * The judgment of the district court is affirmed.” See, also, Myrick vs Jacks, 33 Ark. 428; Moss vs Sandefur, 15 Ark. 381; Mobley vs Andrews, 55 Ark. 222, 17 S. W. 805; Smith vs Gilmore, 13 Mo. App. 155. In Re Haas’ Estate, 31 Pac. 893, the Supreme Court of California says: “This is an appeal by the executor, James F. Mooney, from an order settling his annual account. When the executor filed his account, a legatee under the will objected thereto upon the ground that he had a large sum of money, and also other personal property, in his possession, which was the property of the estate, and for which he had not accounted. In answer to these objections the executor set out that he was the duly appointed, qualified, and acting guardian of Ella V. Haas, a minor; that said property was her property, and he held it as her guardian. * * * He ‘objected to the court’s hearing and determining these matters upon the ground that as a court of probate it had no jurisdiction thereof.’ The court nevertheless heard the issue, find held the property to belong to the estate, and charged the executor therewith. ‘ The minor, Ella V. Haas, was not a party to this proceeding in the trial court, and is not a party to this appeal, although the decree'of the court, which is before us, holds this property to be the property of the estate. The necessary effect of this decree is to declare that she has no title therein, for the question of her title was the only question involved. The — 353 — executor was not in a position to represent tbe ward at the trial of that issue, * * * and the affirmance by this court of the judgment of the trial court would in no degree quiet the title to this property between the respective claimants. The issue raised * * * directly involved the question as to where the legal title to this personal property vested, and that was an issue the probate court had no power to hear and determine. * * * We think the judgment of the court was one beyond its power, and for that reason let it be reversed and the cause remanded.” The foregoing seems to be very like the case at bar. In this case the court reserved an exception for Daisy Overton. But what did that amount to, when, not being before the court, either by herself or guardian, she was not affected by any of it? Morris vs Virden, 57 Ark. 232, 21 S. W. 223; Mansf. Dig.§ 151 Ind. Ter. St. 1899, § 208) which is as follows: “Each person entitled to a distributive share of any estate, and not applying for distribution, shall be notified in writing of any such application at least ten days before any such order shall be made; or, if such dis-tributee is a non-resident of this state, a notice of such application shall be published in some newspaper in this state at least six weeks before any such order shall be made.” The appellees, in their brief, say: “Counsel for the appellant spends much time and collects many authorities upon his argument of subdivision (al) under his third specification of of error, beginning on page 21 of his brief, to show that a probate court is without jurisdiction to determine the title to this $2,000, as it was in dispute, and the order attempting so to do is coram non judiee, and void. His authorities may be good, and may contain the law on this subject. As we have been exceedingly cramped for time, and as this question of title does not enter into this case at bar for a single instance, we have not examined the cases cited.” The view appellees seem to take is that, because the court determined that Daisy Overton would, in his — 354 — judgment, get a larger sqm by taking one-third of the estate after administering said 12,000 .into the estate than she would by keeping the policy, therefore the title to the $2,000 is not in dispute. But appellant, in his exception, says otherwise, and, under the authorities, the title being in dispute, the court was without authority to try' the issue at all, even if Daisy Overton and her guardian had been before the court. The appellant contends that the probate court has no power to compel an election. The appellees vigorously dispute that contention, but have , cited no Arkansas authorities thus construing their statute, and the question may be one of doubt; but no one would contend that an election could be compelled by a probate court or a chancery court without the party was in court. For the reasons stated, the cause must be reversed and remanded. Raymond, C. J., and Clayton, J., concur.