Elton v. Lamb

Goss, J. This is an appeal from an order of the district court of Nelson county disallowing exceptions to an accounting previously overruled in probate court. Letters of administration were issued to J. M. Lamb in October, 1908, upon the estate of Anthony E. Eelder. Administrator farmed the lands in 1909, and also finished farming operations previously conducted by him as agent of the deceased in 1908. The lands were sold in 1910 except a residence property apparently remaining unsold. No administrator’s accounting was ever had until one was filed in October, 1911. In July, 1911, plaintiff had procured a judgment in district court against said administrator in his representative capacity upon two causes of action, which judgment, with costs, aggregated $360.79. One of the causes of action included in the complaint was in the sum of $139 for funeral and burial expenses of the deceased Eelder. Judgment was awarded on demurrer, the order for judgment directing judgment for said amount, with interest, together with an amount found due upon the second cause of action. A judgment in the lump amount of $360.79 was entered inclusive of both causes of action. Both judgment and order therefor directed payment by the administrator “in due course of administration,” and were filed forthwith in the probate court. Plaintiff appeared at the hearing of the administrator’s account, no part of the judgment having been paid, and interposed ob — 396 — jections to the allowance of the administrator’s account, and in all fifteen exceptions thereto. It is unnecessary to discuss any of these except the last one taken, which challenges the payments made hy the administrator of any items shown in his account to have been paid without first payment of the items placed in judgment, and alleging that the personal representative had disregarded the statute granting the claims sued on, or the one for funeral and burial expenses, preference over all other items of disbursement shown to have been made on the account, excepting solely expenses of administration. As this exception is well taken, it disposes of the necessity of a discussion of many assignments taken specifically to the particular payments or disbursements made by the administrator. The portion of the judgment against the administrator for funeral expense is a charge against the estate the same as the expense of administration, and under the express terms of § 8755, Comp. Laws 1913, must be paid next after necessary expense of administration. It is a preferred charge to be paid in preference to all debts of the decedent, whether secured or unsecured. The administrator’s account discloses that over and above the cropping expenses, which are expenses of administration under the circumstances of this case, there were many disbursements made by the administrator in the payment of debts secured and unsecured of the decedent amounting to several times the funeral expenses. To this extent the administrator has misapplied the funds-of the estate. Tor this he is responsible, .as he had paid these claims without any prior court order establishing the order of preference, and subsequently presented his accounting disclosing such erroneous misapplication of the proceeds of the estate. Beyond all doubt he acted in good faith, and had probably at first assumed that the funeral expenses incurred at Washington, District of Columbia, had been paid by the relatives. But under his own testimony he afterward had notice to the contrary, and that the funeral charges remained unpaid in 1910, as on the 13th of December of that year a formal claim was filed with him, while prior to that time the claim had been refused or its payment neglected, and it had been in the hands of others for collection. In fact the administrator testifies that, while he doesn’t remember the date of its first presentation, that “it might have been right after” his appointment. “I don’t know just exactly what the date was. I know he wrote me. I met him — 397 — (party having it for collection) on the street and was talking to him about it.” “I think he sent me statements with a letter.” “One of these claims was a claim for funeral expenses.” As this was a charge against the estate it did not need to be filed as a claim against it, other than to be presented for payment in due course. The administrator could not ignore or disallow it, and by disbursing the estate otherwise leave it unpaid, secure an approval of his accounting, and escape liability, where the claimant as here presents the claim at or before the accounting, and insists upon disallowance of the accounting as made and the payment of the preferred charge. This could not be done any more than could the personal representative refuse to pay necessary expenses of administration and seek to avoid liability for them in his final accounting. But respondent contends that by merging the claim in judgment with another by the taking of a judgment for the lump sum, priority of payment of the charge as funeral expenses is waived, and that the court must regard the entire judgment as an ordinary demand against the state and payable as such as a claim subordinate to all those for which the estate’s funds have been distributed. But with the judgment there was filed in county court the order for judgment granting judgment upon the first cause of action in the amount therein set forth in the suit brought against the administrator, and which cause of action set forth the facts upon which it was based, and that the charge was for no other than funeral and burial expenses. This order for judgment was entered upon the administrator’s demurrer admitting such to be the facts. He was directed to “pay the plaintiff in due course of administration the sum of $139, together with interest on it at 7 per cent per annum from the 5th day of September, 1908, and the further sum of $150.90, with interest thereon at the rate of 7 per cent per annum from the 19th day of June, 1908, together with costs and disbursements of this action.” The administrator well knew of what the first item of $139 consisted, and likewise the probate court must have known that it was for funeral expenses, and that to comply with the order of the district court the funeral expenses should be paid “in due course of administration.” To do this it must be paid in order of preference next after the necessary expenses of administration of the estate. And although the exceptions taken to the account, numerous though they are, and unneces — 398 — sarily so, are not specific in claiming a preference for this claim for funeral expenses over tbe other claims paid, yet it is plain that the administrator knew of the nature of the claim, and that it was his duty in accounting, even without exceptions requiring it, to disclose that it had not been paid. It was likewise the probate court’s duty to ascertain whether funeral expenses had been paid, and, if not, why not. Even if it be assumed that appellant was wrongfully trying to obtain a preferential payment of the entire amount of the judgment, only approximately one half of which was preferred as for funeral expenses, nevertheless it was the duty of the administrator and the probate court to separate the items and classify them as to priority, and so obey the order of the district court that they be paid in “due course of administration” according to priority. None of the other fourteen assignments, based upon that many exceptions to the account, are allowed, excepting No. 2, which was not a preferred claim, but one of the lowest grade, as was the balance over funeral expenses of this judgment. All other exceptions to the account are overruled without further discussion. One further question deserves mention. The respondent in district court moved “to dismiss the appeal (from the county court) on the ground that the appellant as a creditor is not a party to the proceeding in county court, and is not a party in interest as defined by the statutes, and not entitled to appeal from the order allowing the annual report, and that an order allowing an annual report of an administrator made by a county court is not an appealable order.” Taking these in order, the appellant even as a creditor of the estate so far as an administrator’s accounting is concerned is a party interested in the estate. The approval of the account establishes its validity as against the claim asserted, and the only remedy of this judgment creditor is by appeal. The district court, having but appellate jurisdiction, is devoid of authority to rank or classify the claim, or otherwise, except on appeal, disturb the accounting as settled by the order of the probate court. The parties were in probate court upon a hearing called for the very purpose, not only as between the heirs and those who would share in a division of the assets of the estate, but inclusive of creditors of all classes. This is discussed and settled in Johnson v. Rutherford, 28 N. D. 87, 147 N. W. 390. Subdivision 11 of the syllabus in that case reads: “Probate procedure — 399 — contemplates that claims allowed by the administrator and the county court shall not be fully litigated on presentation for such allowance, but the validity of a claim so allowed may be tried on the hearing to be had on the personal representative’s accounting or upon his application to sell property had on notice, from any of which an appeal from the judgment passed by the probate court may be taken on the items of the account thus litigated to the district court and thére retried. An appeal is also allowed from a claim established in county court by the confirmation of the report of a referee appointed by consent and from which an appeal to the district court may be taken. The district court on such appeal acts as an appellate tribunal, with judgment to be entered under its order in the probate court.” But respondent would distinguish as does some authorities between whether the order is one settling a final account or an annual account of an administrator. Under our practice this distinction is without merit. Our probate statutes are taken almost literally from California, as a comparison with those of that state will disclose, and as has been held in the case above cited. The recent work of Church on Probate Law & Practice, a California text-book largely upon the statutes of that state, has the following at page 1238 under the heading “Appealable Orders:” “An order settling the final account of an executor or administrator is appealable. Re Couts, 87 Cal. 480-482, 25 Pac. 685. An interlocutory order settling the account of an administrator, but not discharging him from his trust, is not a final judgment, but such order is appealable. Re Rose, 80 Cal. 166—170, 22 Pac. 86; Re Sanderson, 74 Cal. 199, 15 Pac. 753. . . . There is no distinction between orders settling accounts as to their appealability. An order settling an account is appealable whether it be a final or any other account. Re Grant, 131 Cal. 426-429, 63 Pac. 731.” And such is the contemplation of our statutes. Although § 8513, subdiv. 5, excepts a creditor from what is usually meant by the phrase “person interested” “except where a different signification is apparent from the context,” it can have no application to hearings had upon accounts concerning the ranking of creditors for sharing in the estate and accounting, allowing or disallowing it. Bespondent’s contention would also bar a creditor from a hearing upon a final accounting called pursuant to §§ 8834-8836 if a creditor is not a “person interested,” because excluded by § 8513. A creditor is a person interested in the estate and entitled — 400 — to participate in and litigate the account, whether it be annual or final; and whenever so litigating a trial is had it is had in the court of original jurisdiction to determine such issues; and except when otherwise provided by statute it is conclusive, unless appealed from. This passes upon all questions necessary except concerning costs. It was necessary, for plaintiff to sue the administrator to establish the right to payment of a preferred claim, a charge against the estate for funeral expenses. He is entitled to the costs of this litigation, with the amount of funeral expenses and interest thereon, together with his necessary expense and disbursements at the hearing of the administrator’s account, together with his taxable costs on this appeal. The district court will tax costs in plaintiff’s favor accordingly for the trial had in that court, together with the plaintiff’s appeal costs, and enter judgment therefor, and order also that the probate court disallowed said accounting and set aside its order of confirmance thereof, and that it require the administrator to pay the funeral charges and costs of collection aforesaid, and that such further proceedings may be had in probate court as are provided by law.