Otero v. Otero

NAVE, J. — Mrs. Otero brought suit against Joseph J. Otero and W. K. James to quiet title to real estate. Prom a judgment in favor of defendants, she has appealed. The assignments of error are directed at a ruling of the. court excluding from evidence an order of the probate court of Maricopa county offered in evidence by the plaintiff. • The instrument so rejected has not been brought before us by the record. This point is raised by counsel for the appellees as an objection to our consideration of the assignments of error. Counsel for the appellant and counsel for the appellees have each failed to call our attention to the fact that the trial court, by its findings of fact, set forth its action with reference to this offer of evidence in sufficient detail to bring the ruling properly before us. The court’s findings in this behalf are as follows: “That on September 20, 1901. the said Jesus L. Otero, jAe husband of the plaintiff, died intestate, leaving him surviving eight children, all of whom are still living. That thereafter, on December 6, 1901, one Arthur M. Otero was by the probate court of Maricopa county duly appointed the administrator of the estate of said Jesus L. Otero. . . . That thereafter, on July 8, 1908, the probate court entered an order discharging said administrator and releasing the sureties on his bond as such administrator. That on April 18, 1904, a petition was filed in the probate court by this plaintiff, in which, among other things, the said plaintiff set forth that the property described in the complaint herein, being the property of said estate, together with other property, was omitted from the inventory of the property filed on said twentieth day of May, 1902, by the said administrator, Arthur M. Otero, as the property of said estate. . . . That on the trial hereof, the plaintiff offered evidence to prove that the said probate court entertained said petition of the plaintiff herein which was filed in said court on said eighteenth day of April, 1904, at the request of the said Joseph J. Otero and Leopold P. Otero, and, with their consent, made an order setting aside the order discharging said Arthur M. Otero as administrator of said estate, and directed him to proceed and carry out the administration of said estate and to administer upon the property mentioned in said petition, including the property set forth in the complaint herein. Further, that said administrator did administer upon said property, and that part of the property mentioned in said petition was distributed to all of the heirs, [265] including said Joseph J. Otero and Leopold P. Otero, in the course of said later administration, and that in the course of the further administration of said estate the probate court, by and with the consent' of all the heirs, did order the sale of the property mentioned in the complaint herein. That the sale thereof was made, and thereafter duly ■ confirmed, and the administrator, Arthur M. Otero, directed to execute proper conveyance of said property, and that such conveyance was thereafter duly executed to the plaintiff herein, prior to the commencement of this action. That this court refused to allow the introduction of such evidence so offered, to all of which the plaintiff duly excepted.” Reference to the reporter’s transcript, which is properly set forth in the abstract of the record and was allowed by the trial judge as correctly embodying his rulings, discloses that the objection to the introduction of these proceedings of the probate court, which was considered and sustained by the trial court, was that such proceedings were without the jurisdiction of the probate court. It is disclosed that the administrator of the Otero estate was discharged on July 8, 1903; that the petition upon which the order setting aside this order of discharge and directing further administration, and the orders of distribution and sale were based, was filed at a term of the probate court subsequent to that at which the order was made discharging the administrator. It was contended by the defendants (appellees) in the trial court, and is contended here, that after the lapse of the term at which the order was made discharging the administrator the probate court lost jurisdiction of the estate, and could not again acquire it except by the initiation of new proceedings; that the court could not set aside the order discharging the administrator by reason of such loss of jurisdiction. We concur with the appellees that the order discharging the administrator was a final order, and that the probate court did not have jurisdiction to set aside that order after the lapse of the term in which the order was entered. Bronson v. Schulten, 104 U. S. 415, 26 L. Ed. 797; National Metal Co. v. Greene Consolidated Copper Co., 9 Ariz. 192, 80 Pac. 397; Smith v. Hanger, 150 Mo. 437, 51 S. W. 1052. But it is also the law that “the records, orders, judgments and decrees of said probate courts shall have accorded to them like force and effect and legal presumptions as the record, orders, judgments and decrees of the district court.” Para [266] graph 1597, Revised Statutes of 1901 of Arizona. And also: “The final settlement of an estate, as in this chapter provided, shall not prevent a subsequent issue of letters testamentary, or of administration, or of administration with the will annexed, if other property of the estate be discovered, or if it become necessary or proper for any cause that letters should be again issued.” It appears from the trial court’s findings of fact that a petition was made to the probate court setting forth the existence of unadministered property. This petition is set forth in the abstract of record. It recites “that Jesus L. Otero died on the twenty-ninth day of September, 1901; that decedent, at the time of his death, was a resident of Maricopa county, Arizona”; that, theretofore, upon petition, letters of administration had been issued appointing Arthur M. Otero administrator. It sets forth in some detail the acts of the administrator in administering upon a portion of the estate; that the administrator on July 8, 1903, was discharged; that since said discharge it has come to the knowledge of petitioner that certain property, to wit, real estate (described) situated in Phoenix, and certain cattle oñ a range in Maricopa county, “being the property of the said estate, was not inventoried, appraised or distributed, . . . therefore your petitioner prays that the order discharging the said administrator, Arthur M. Otero, be set aside and vacated, and that the said administrator be required to file an inventory of said property belonging to said estate, and not heretofore administered upon, that said property be appraised and administered upon, and that this court make an order in due course of law distributing said property to the parties entitled thereto.” It is signed by the petitioner, Maria O. Otero, appellant in this case. Thus, there is here, in complete nicety, a petition complying with the requirements of paragraph 1653: “Petitions for letters of administration must be in writing signed by the applicant, stating the facts essential to give the court jurisdiction of the ease. ’ ’ The death of the decedent, his residence within the jurisdiction, and the existence of property of the estate within the jurisdiction being shown, certainly no essential is omitted. A less showing is sufficient. Beckett v. Selover, 7 Cal. 233, 68 Am. Dec. 237. Though the petition concludes with a prayer which in part is beyond the court’s jurisdiction to grant, the facts alleged in it not only disclosed jurisdiction to act, but imposed upon the probate court a positive [267] legal duty to act. Yan Fleet on Collateral Attack, sec. 60; Goodwin v. Sims, 86 Ala. 102, 11 Am. St. Rep. 21, 5 South. 587; Hodge v. Fabian, 31 S. C. 212, 17 Am. St. Rep. 25, 9 S. E. 820. The request for administration was joined in by one of the appellees and Leopold P. Otero, the predecessor in interest of W. K. James, who is the only other appellee. The interest of the latter was acquired from Leopold P. Otero subsequently to all of the orders and actions of the probate court herein referred to. Pursuant to this petition, the probate court made an order which purported, not merely to set aside the discharge of Arthur M. Otero as administrator, but further directed him to proceed with the administration of the estate and to administer upon the unadministered property. Whether notice pursuant to statute was given does not appear. But the only persons interested requested the proceedings. The petition to administer upon the unadministered estate gave the court jurisdiction. The manifest irregularity in the ■ order of administration might have been the basis for a successful appeal, hut did not défeat the jurisdiction. An order of administration was made, administration was had, and a final order of distribution was made. The administrator was in fact acting under a second appointment, and, although not so designated, was an administrator de bonis non. Veach v. Rice, 131 U. S. 293, 9 Sup. Ct. 730, 33 L. Ed. 163. This is not a situation in which proceedings are void by reason of the failure of a court to bring interested parties before it by proper process. Here the interested parties were actually in court, voluntarily appearing and joining in the requést for the administration; and subsequently they consented to the sale through which appellant offered to show her title. Without inquiry as to what would he the situation if there had not been such appearance and joinder, by reason thereof the appellees may not collaterally attack these proceedings. It follows that the trial court materially erred in refusing the offered evidence. The judgment of the district court is reversed, and the ease is remanded for a new trial. SLOAN and CAMPBELL, JJ., concur. DOAN, J., dissents.