Bean v. Cloward

LARSON, Justice. This is an appeal from an order of the District Court of Sevier County, sitting in probate, revoking letters of administration on the Estate of Thomas H. Cloward, Deceased, theretofore issued to the appellant Bean, and from an order — 457 — disallowing in toto his accounts as administrator. The facts as far as pertinent to the matters before us follow: Thomas H. Cloward, a resident of Sevier County, died in May, 1923, leaving surviving him a widow, Amanda, and several minor children. His estate consisted of property in said county. In September of that year letters of administration of the estate were issued to the widow, Amanda Cloward, who qualified, caused notice to creditors of the estate to present their claims to be published as required by law, and filed an inventory and appraisement of the property, showing the estate to be valued at $1,400. Nothing further was done in the probate proceeding, but the widow and minor children occupied the property as a home. Sometime later, Amanda Cloward married Allen Searle, by whom she had one child, a son, still living. She died in Sevier County in August, 1935, leaving surviving her as heirs at law her second husband, Allen Searle, one son by her second husband, and five children by her first husband, Thomas H. Cloward. Three of said heirs were minors. In November following her death, G. T. Bean, appellant, filed in the District Court of Sevier County his petition asking that letters of administration of the estates of Thomas H. Cloward and Amanda Cloward Searle be issued to him on said estates jointly, and that said estates be administered upon together. Bean alleged that Amanda Cloward Searle was indebted to him on a personal obligation incurred since her marriage to Mr. Searle and that he was therefore a creditor of her estate. He made no claim of any interest as an heir, creditor, or otherwise in the estate of Thomas H. Cloward. In April, 1936, an order was entered in conformity with the prayer of his petition. Bean subscribed an oath, filed a bond, and entered upon the administration of both estates, jointly. In March, 1937, Charles H. Cloward, a son of Thomas H. Cloward and Amanda Cloward (Searle), filed a petition to revoke the letters of administration issued to appellant Bean and appoint petitioner as administrator of the estate of Thomas H. Cloward. He attacked the letters issued to Bean — 458 — as void upon two grounds hereinafter set forth. Bean filed an account and joined issue on the petition to revoke his letters. Upon hearing, the court revoked the letters of administration as to the estate of Thomas H. Cloward issued to Bean as void and disallowed in full all his claims and expenditures. He appeals and presents three questions: (1) Were the estates of Thomas H. Cloward and of Amanda Cloward Searle subject to administration jointly under the provisions of Sec. 102-4-6, R. S. Utah 1933? (2) On the petition of Bean and the record as made, did the court have power and authority to appoint Bean, a stranger, as administrator of the estate of Thomas H. Cloward, deceased? (3) Was the ruling of the court disallowing the account of Bean erroneous? We shall consider them seriatim. (1) The statute, Sec. 102-4-6, R. S. 1933, reads as follows: “In all cases where the estate left by a deceased person had descended from another deceased person whose estate has never been probated, or where two or more deceased persons held property during their lifetime as tenants in common, and neither estate has been probated, and where the heirs are the same, the court may grant letters of administration upon such estates jointly, and they may be administered the same as if they were but one estate.” This section seems to be original in this State and such research as has been made has not revealed it in the laws of any other state, and, so far as we can find, its provisions have never been construed. A number of questions as to the meaning and interpretation of the section suggest themselves, of which we note a few: (a) Does the clause “Where the heirs are the same” apply to the case when the estate of a deceased person descended from another deceased person as well as to a case where the estates of deceased persons had been held by tenants in common during their lifetime? (b) Does the first clause of the section require that the entire estate of the second deceased person shall have descended from another deceased person? (c) Does the clause “where the heirs are the same” permit the joint administration of two — 459 — estates without one or the other of the two prior conditions ? (d) Does the clause “whose estate has never been probated” refer to cases where administration had not been commenced or does it include cases where administration in at least one estate has been commenced but not completed? It is not necessary in this case to answer or discuss questions listed as (a), (b) and (c), and they are suggested only for the reason that having them in mind may help to understand what may be said in regard to question (d). It is unnecessary to discuss question (a) because in this case there is a distinct diversity of heirship. As to (b), the record discloses that the entire estate of Amanda Cloward Searle, as shown by appellant’s petition, consists of an interest in the estate of Thomas H. Cloward. It is therefore unnecessary to discuss the question as to whether the statute could apply were there other property in Amanda Searle’s éstate. And for the same reason question (c) is not before us in this instance. This brings us to a consideration of question (d). The statute specifies that the estate from which the other estate descends shall have “never been probated.” Does that mean “administration has never commenced” or that “administration has not been completed”? We think it means the former. Coupling the administration of a new estate with one partially administered may in some cases necessitate the removal of an administrator already functioning, or it may place as administrator in one estate a person without statutory right to administer in the other estate. It often would result in a renewed giving of notice to creditors in the first estate after time for presenting claims had passed, and might call for a re-appraisal and other duplications of work and expense. We mention these as a few of many practical objections to a construction other than we have given. The law governing wills and the administration of estates of deceased persons is statutory. The court, sitting in probate, derives its power from the statutes and has only such powers as are granted by statute — 460 — or reasonably implied or reasonably necessary and proper to effectuate the powers which are given. Provisions of the probate code should be construed in harmony with the general purpose, intent and provisions of the code as a whole. The word “probate” or “probated” is not found in the provisions of the probate code referring to the administration of estates, commencing with Chapter 4 of Title 102, Sec. 102-4-1, to the end of the Title (Probate Code), Sec. 102-14-25, except in the one section now under discussion. On the other hand, the word “probate” or “probated” is found numerous times (at least 12) in Chapter 3 of the Title, Secs. 102-3-1 to 102-3-27, referring to Wills. This chapter is entitled “Probate of Wills,” and provides in ten different sections for the probating or proving of a will, i. e., admitting it to probate; that after a will has been probated letters testamentary shall issue; that after a will has been “probated” a petition may be filed to revoke the probate of the will; and that “a copy of a will and the probate thereof, duly authenticated,” shall be proof thereof in any ancillary proceedings; and that after a will has been “probated” if the executor fails to qualify, resigns, or dies, an administrator with the will annexed may be appointed. It is evident that wherever the legislature has used the term “probate” or “probated” it means the proving under a properly drawn petition of the facts necessary to vest the court with jurisdiction to proceed with the administration of the estate, the establishment of the death of the decedent, his residence, the existence of an estate and all other facts necessary and proper to call into existence and exercise the functions and powers of the court to seize upon, control and administer the estate for the protection of creditors and the devolvement of the property upon the proper heirs, legatees, de-visees, and others entitled to receive or enjoy the property or the usufruct thereof. When this has been done and the estate properly brought within the grasp and control of the court to be handled according to the rules of law relative to administration, the estate has been probated, that is, — 461 — brought within the functions and powers of the probate court. We see no reason for holding that the legislature in the one instance used the word “probated” in any different sense or meaning than it did in all the other instances where it used the word in the probate code. While we find no case construing a statute like this one, the following cases may be helpful: Decker v. Fahrenholtz, 107 Md. 515, 68 A. 1048, 72 A. 389; Shevalier v. State, 85 Neb. 366, 123 N. W. 424, 19 Ann. Cas. 361; Schofield v. Thomas, 231 Ill. 114, 83 N. E. 121; In re Pforr’s Estate, 144 Cal. 121, 77 P. 825; Dibble v. Winter, 247 Ill. 243, 93 N. E. 145; In re Mortenson’s Estate, 248 Ill. 520, 94 N. E. 120, 21 Ann. Cas. 251; In re Miller’s Estate, 216 Pa. 247, 65 A. 681; Lamb’s Estate v. Hall, 122 Mich. 239, 80 N. W. 1081; McCoy v. Clayton, 119 Pa. 133, 12 A. 860; Johnson v. Harrison, 47 Minn. 575, 50 N. W. 923, 28 Am. St. Rep. 382; Reno v. McCully, 65 Iowa 629, 22 N. W. 902. It follows that the estate of Thomas H. Cloward had been probated prior to Bean’s petition for joint administration of the two estates and could not therefore be jointly probated with the estate of Amanda Clow-ard Searle. We now come to a consideration of our second question: On the petition of Bean and the record as made, did the court have power and authority to appoint a stranger as administrator of the estate of Thomas H. Cloward, deceased? This involves the construction and interpretation of Secs. 102-4-1, 102-4-2, and 102-4-3, R. S. Utah 1933, which read as follows: 102-4-1: “Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof; and they are, respectively, entitled thereto in the following order: “(1) The surviving husband or wife. “(2) The children. “(3) The father or mother. — 462 — “(4) The brothers or sisters. “ (5) The grandchildren. “(6) The next of kin. “Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled filed in the court.” 102-4-2: “When there are several persons equally entitled to administration, the court may grant letters to one or more of them. Of several persons claiming and equally entitled to administer, relatives of the whole blood must be preferred to those of the half blood. If none of the relatives entitled or their guardians will accept, then the creditors shall be entitled to letters, but when a creditor is applying, the court may, in its discretion, at the request of another creditor, grant letters to any other person legally competent. If a dispute arises as to relationship between applicants, or if there is any other good and sufficient reason, the court may appoint any competent person.” 102-4-3: “Letters of administration must be granted to any interested applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves.” (Italics added.) The first section entitled, “Letters of Administration. To Whom Granted,” clearly indicates the purpose of the law to keep administration within those beneficially interested in the estate. It provides: (a) Letters must be granted to the persons therein mentioned (strangers to the estate are not mentioned), (b) Even the mentioned groups can administer only when they are entitled to succeed to personal estate, (c) The right to administer is such a valuable one that the person with preferential right may in writing designate who shall act if he does not choose to act personally, (d) Any person not enumerated in the section may be appointed only when the person enumerated and entitled to letters shall designate him in a writing filed in the court. The next section, 102-4-2, is in the nature of a limiting or qualifying section to 102-4-1. It deals with the duty of the court in determining who shall receive letters in view of — 463 — the restrictions indicated in Sec. 102-4-1. It provides: (e) The court may appoint more than one of the group enumerated in the preceding section, provided they are of the same group, i. e., equally entitled; but (f) relatives of the half blood are not equally entitled with relatives of the whole blood, and therefore cannot act if the relative of whole blood will act; (g) if one of those who can be appointed (enumerated in the first section), is under guardianship because of minority, or other reason, such guardian has all the rights of his ward for administration; (h) in the event only that none of the enumerated classes, or their guardian, is willing to act, may a creditor be entitled to letters; (i) in the event only that none of the persons inheriting from the estate nor the guardian of such is willing to act, and have not designated in writing their nominee, and in the further event that there is a dispute between creditors as to the appointment, then and in those events only may the court grant letters to any other person legally competent. This brings us to the last sentence of the section, which we note in a moment. Down to this point then, it is evident that the right to letters is reserved to persons beneficially interested in the estate, that is, entitled to inherit, or their nominee in writing, qualified only by the fact that if there are creditors of the estate and none of the heirs are willing to act, a creditor may be appointed. His right being so limited, methinks it would be necessary for a creditor to plead and prove that none of the heirs are willing to act and have filed no written designation of nominee in the court. Under the terms of the statute, as quoted down to this point, it is only in the event of a dispute between creditors that the court can appoint as administrator a stranger, that is, a person entitled to receive nothing from the estate except his fees and commissions. The reason for this we will note later. We now take note of the closing sentence of the section last considered, 102-4-2. That sentence reads: “If a dispute arises as to relationship between applicants, or if there — 464 — is any other good and sufficient reason, the court may appoint any competent person.” Appellant relies upon the italicized clause as sufficient authority for the appointment of Bean. This whole section is in the nature of a procedural section, designating the only conditions under which the court may depart or vary from the provisions of the preceding section. To take a clause out of the middle of a sentence, which itself is an exception conditioned on an “if”, and is part of a section of specific detailed exceptions, and construe it as a general grant of power and wide discretion to the court, in a matter which is in the nature of a special proceeding, strictly statutory, goes beyond any sound, approved or recognized rule of statutory construction. The section is treating of the limited conditions under which the court may depart from appointment of those entitled to inherit. The sentence then states that where there are applicants for appointment who are relatives of the deceased, and therefore within the provision of the preceding section and eligible for appointment, and between such applicants a dispute arises as to relationship and priority or right to appointment (the court need not try and determine such question of heirship in advance), or if there is other good and sufficient reason why the applicant, or in the event of a contest neither of the contesting applicants, who are apparently among the eligible classes and therefore entitled to administer, should be appointed, the court may appoint any competent person. Administration having been sought by those entitled to have the estate administered, but for sufficient reasons their appointment not being proper, the court may grant letters of administration to another, so that the parties entitled to have the estate administered and who are asking to have it administered may receive their beneficial interest or the payment of their debt, and may obtain that which is theirs. But a stranger to the estate who is not a creditor and has no interest in the property of the estate on distribution, who can receive nothing from it except fees and commissions as an adminis — 465 — trator or attorney, has and should have no right to subject the property to debts and expenses, or to disturb the use or occupancy of the property and change its title or ownership. Such construction is in harmony with the sentence, with the section, with the chapter, and with the purpose, reasons, and underlying philosophy of probate jurisdiction and procedure. The writer is aware that this reasoning appears at first blush to be at variance with the holding in Re Owens’ Estate, 30 Utah 351, 85 P. 277, and one or two other cases following it. However, a careful reading of the opinions in those cases discloses that the court did not construe these sections, and the holdings are not in conflict with what is here said. If in the Owens’ Case the opinion is at variance with what is here said, then the question should be re-examined, but we need not be concerned with what was said in that case because the legislature has re-examined the question for us and has definitely settled the question. At the time of the decision in all prior cases, we had a statute which read: “Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves.” Rev. St. 1898, § 3814. (Italics added.) The italicized language in that section was specifically referred to in the Owens’ Case and made the basis of what was there said about disinterested persons in administration. So, too, it forms the basis of the opinion in Re Slater’s Estate, 55 Utah 252, 184 P. 1017. The rule or interpretation of the Owens’ Case was again followed by this court in Re Pingree’s Estate, 74 Utah 384, 279 P. 901. Shortly thereafter the legislature amended the section to conform to what the writer thinks the intent of the Probate Code to be, construed as a whole, by making a specific amendment to the section so as to render inoperative further, the reasoning of the Owens’ Case by limiting the provisions of the — 466 — section under which the Owens’ Case was decided to interested parties only. It was amended to read: “Letters of administration must be granted to any interested applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves.” (Italics added.) Sec. 102-4-3, R. S. 1933. In view of what had been the construction previously placed upon the section, there is no sound or reasonable escape from the conclusion that the legislature meant to limit the right to seek administration to “interested parties.” Note further that the section provides that even an “interested applicant” cannot have letters issue until all persons having a better right have allowed three months to elapse. The “interested applicant” cannot receive letters and therefore has no right to seek administration until all those with better rights have indicated by a three-months’ lapse of time that they do not desire letters. This is sound reasoning and under the authorities is the rule in harmony with the basic philosophy and purpose of the Probate Code and proceedings. The property of a decedent passes to the heirs (in whom the title vests at the death of the prior owner), subject only to administration. Even the right of possession of real property vests in the heirs during administration. This is because no one else has any interest in the property unless the right of the creditor to be paid may be said figuratively to be an interest, a right to receive part of it in satisfaction of his claim. If the heirs of decedent, not the owners of the property, are content to let it remain in common or undivided ownership, and agree among themselves for care and use, what right should a stranger have to interfere? If there is only a spouse surviving, or minor children, or both, or disabled heirs who may need the possession and usufruct of the property, and the other heirs, if any, prefer that they should have it, why should a stranger be permitted to meddle in the stew and decree otherwise? If a creditor within the — 467 — three-months’ period, or a stranger at any time, could invoke the power of the court to appoint an administrator, then this provision would be but useless verbiage having no effect. Further reasons were cogently stated in the Owens’ Estate Case, supra, wherein it is said (page 278) : “Familiar rules forbid a construction which will render meaningless and ineffective, words, phrases, or clauses in an enactment, when some other reasonable interpretation will render them effective and declare the legislative intent. It is only when none of those entitled will accept the appointment, or when no one of them appears within three months of the death of the decedent that the court is empowered to appoint a creditor either on his own petition, or at the request of another creditor. One of the principal reasons for thus preferring relatives and next of kin, doubtless, is that they, being entitled to succeed to what remains of the estate, after the discharge of the debts and obligations, are the most deeply interested in a proper administration of it, and in preserving it. The policy of thus preferring relatives and next of kin, over creditors, in the order in which their interests naturally appear, seems to be suggested alike by sound reason and justice. The creditor is interested only to the extent of having his claim paid, and, when that is done, his interest in the estate ceases, while the interest of one, who is entitled to all or a portion of the residue, continues until final distribution. For the latter, therefore, there is the greater inducement to conduct a wise and economical administration, and the former’s interest can be just as well subserved as when a creditor is appointed. For the benefit of the creditor, as well as others interested in the estate, the law makes ample provision for prompt action, since it limits the time of preference, the clear intent and meaning of the statute being that those who are primarily entitled to administration must appear and assert their right, as provided by law, within three months after the death of the intestate. Until the expiration of that period, no creditor, in the absence of a renunciation of the right to administer by all of those preferred, is authorized to apply for appointment as administrator. “The Legislature having thus, for cogent and wise reasons, preferred relatives and next of kin by provisions of statute, which are clearly mandatory and binding upon the courts, is not the fact of such preference indicative of the legislative intent ***?*** yhe con_ trolling object of the statute evidently is to secure to those, who have an interest in the residue of the estate, the right to administer. If, then, such persons, because of residence beyond the seas, or of minority, or other cause, cannot themselves administer, it is wholly within — 468 — the spirit and policy of the law, and, therefore, the duty of the courts, to recognize those, whom such persons select and in whom they have special confidence, when their fitness for the position is unquestioned. The word ‘may,’ in subdivision 6 of section 3812, and in subdivision 2 of 3815, was not employed to vest mere discretion, but to confer a power upon the court to be exercised whenever the conditions or contingencies, indicated by the statute, should exist or arise, and when upon the occasion arising for the exercise of that power, the court fails to exercise it, but instead appoints some one not within the contemplation of the statute, it fails to comply with the law and its action is erroneous. * * * “The respondent applied for letters of administration not only before the expiration of the time limited, by the statute, for relatives and next of kin to apply, but he was not a creditor of the estate within his individual capacity, and, hence, not a creditor within the meaning of the statute. Nor was he of kin; nor had he any personal interest in the estate. He, therefore, had no right to be appointed as administrator of the estate.” In Bancroft’s Probate Practice, Vol. 1, Sec. 248, the rule is stated as follows: “Rights of Disinterested Strangers. There appears to be some doubt under the authorities as to whether a person who is neither relative nor creditor of the deceased has any ‘right’ whatsoever to apply for letters of administration, even although no one in better right has applied. The Idaho court has held that a person who has no interest whatsoever in the estate has no standing to apply for letters of administration except when nominated by someone in interest. An attempted application by such a person amounts to nothing, and the probate court, it is said, is limited in its power.” The Idaho statute was more general than ours. It was even broader than ours before the amendment of 1933, reading, “any person legally competent” as the last group entitled to administer the estate. Our statute in the similar section, 102-4-1, R. S. 1933, limits such persons to those nominated in writing by a person otherwise entitled to letters. Yet the Idaho court held that a petition for the appointment of a stranger not upon the request of an heir or creditor conferred no rights on the court to act and make such appointment. McCormick v. Brownell, 25 Idaho 11, — 469 — 136 P. 613. And a further provision of our statute quoted above expressly requires that it be an “interested person.” We quote further from Bancroft, same section: “In most states the statutes do not expressly impose any limitations requiring that the petitioner for letters be interested or nominated by one in interest. They are undoubtedly defective in this regard. It is •outrageous to suppose that the expense and inconvenience of an administration can be imposed upon those in interest by any interloper coveting the fees. For this reason the rule announced by the Idaho court is eminently just. And it is true that the statutes vaguely imply that persons not in interest must be nominated by someone in interest when, as is commonly the case, they recite that ‘administration may he granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court.’ ” To like effect is Borland on Wills and Administration, p. 501. See, also, Woerner’s American Law of Administration, Vol. II, p. 795, ff; Pullis v. Pullis, 127 Mo. App. 294, 105 S. W. 275. So, in Illinois, it is held that before an estate can be committed to the public administrator, it must affirmatively appear that there is no relative or creditor in the state, and that the application was made by a party in interest. Otherwise, the proceeding will be coram non judice, and void. Langworthy, Unknown Heirs of, v. Baker, 23 Ill. 484. And a grant of letters based on a petition, omitting the averment of a jurisdictional fact, and no evidence thereof being heard, may be avoided in a collateral attack, where it is shown that such fact did not exist. Coe Brass Mfg. Co. v. Savlik, 2 Cir., 93 F. 519. In Nebraska the petition for the appointment must allege the vital points conferring jurisdiction or the proceeding will be void. Moore’s Estate v. Moore, 33 Neb. 509, 50 N. W. 443. Subsequently, after an amendment of the statute to authorize the court to appoint any applicant (not interested applicant) if no interested party applied within thirty days, the court, held that the appointment of a party not interested could not be collator470 ally attacked. Larson v. Union Pacific R. Co., 70 Neb. 261, 97 N. W. 313. Yet the same court held in Re Estate of Pollard, 105 Neb. 432, 181 N. W. 133, that even in the light of the Larson Case, a stranger to the estate has no right of appeal from a court ruling adverse to him. In Michigan it was held that the appointment of an administrator is void, unless the record shows all jurisdictional facts, including the interest of the applicant. Shipman v. Butterfield, 47 Mich. 487, 11 N. W. 283; Haug v. Primeau, 98 Mich. 91, 57 N. W. 25; Besancon v. Brownson, 39 Mich. 388, 392. In that state the jurisdictional facts which the petition must allege are that the person whose estate is to be administered died intestate, and was at the time of his death either an inhabitant or resident of the county in which the applicant is made, or, if he died out of the state, that he left an estate in the county to be administered. If these facts appear, the court has jurisdiction to appoint an administrator upon the petition of a party interested. Wilkinson v. Conaty, 65 Mich. 614, 621, 32 N. W. 841. On the same principle, one showing no interest cannot petition for letters. Diem v. Drogmilher, 158 Mich. 380, 122 N. W. 637. And cannot object to an appointment. Succession of Berfuse, 34 La. Ann. 599; Drexel v. Berney, 1 Dem. Sur., N. Y., 163. If the applicant claims to be a creditor, only a prima facie showing is required, but if the proof of this fails the petition should be dismissed. In re Mumford’s Estate, 173 Cal. 511, 160 P. 667. In Storrs v. St. Luke’s Hospital, 180 Ill. 368, 54 N. E. 185, 72 Am. St. Rep. 211, the Supreme Court of Illinois says (page 186) : “In construing the statute, we have also held that the words, ‘any person interested,’ as used in the proviso to said section 7, mean those persons who are interested in the settlement of the estate, — that is to say, those who will be directly affected in a pecuniary sense by its settlement; that the interest must be a direct pecuniary interest affected by the probate of the will, as the reference is to an existing interest, and not to an interest which may be subsequently acquired.” — 471 — This case is cited, quoted and approved in Halde v. Schultz, 17 S. D. 465, 97 N. W. 369. Woerner in his American Law of Administration states: “But it is obvious that, in the exercise of the power of appointing administrators, the court is limited to the selection of such persons as are competent under the statute, in the order therein pointed out.” Vol. 2, p. 812. “The rule which is the foundation of the preference accorded by the statutes — i. e., to commit the administration to those who are eventually entitled to the property — is equally binding upon the court, in the exercise of the discretion vested in it in choosing between several individuals placed by the statute in the same class of preference. It follows, from this that the court will rarely or never be called on to decide on questions of the policy of following the lineal or collateral direction of kinship, as would be important at the civil law, or computing the propinquity between the lineal and collateral kindred, as would be necessary at the common law; but, having ascertained to whom the property of the intestate devolves under the statute governing this subject, its discretion is narrowed to the individual or class of individuals so entitled.” Woerner, Vol. 2, p. 814. “And in cases of conflicting claims, the applicant upon whom a majority of the parties in interest agree will generally be preferred, but not, of course, unless the nominee belong to the same class; for the order of preference enacted by statute cannot be changed or ignored to the postponement, of any person included therein.” As to what a petition for letters should contain, we quote from the same work, at page 860: “But while it may not in all cases be absolutely necessary to support the jurisdictional power of the court by a recital of all the facts, yet it is of the highest importance that a record should be made of all facts and circumstances which call forth the judicial powers of the court. The petition of the applicant for letters affords the most convenient means for proper allegations, so that the finding upon it may constitute an adjudication of all the necessary facts. The averments should include, among other things, first, the death of the person whose estate is to be administered, his place of domicil at the time of his death, and whether he died testate or intestate; next, if he left a will, that it has been admitted to probate, and the name or names of the persons nominated executors; third, if the application be for letters of administration with the will annexed, that no executor has been named, or that all so named have renounced, died, or are incom — 472 — petent to serve, and the circumstances conferring upon the applicant the right to administer the estate; fourth, the names of the widow, husband, next of kin, or heirs; as the case may be; fifth, the nature of the goods, effects, or other estate left by the deceased, and its estimated value; sixth, if the application be for letters of administration generally, the relation or kinship between the deceased and the applicant; seventh, if the application be for letters de bonis non, the death, removal, or resignation of the former executor or administrator, or, if there were several, of all of them, eighth, if the decedent was at the time of his death a non-resident of the county, the existence of property within the county, or other circumstance showing the necessity of administration; and, generally, whatever facts may exist which, under the law of the State and the particular circumstances, may have a bearing upon the jurisdiction of the court to grant letters, the right of the applicant to be appointed, and the amount of the bond to be required, or whether any bond be necessary.” Research has revealed no cases under statutes such as ours that hold that a stranger, not nominated by an interested part or a creditor, can by a petition confer upon a court any power to make an appointment of such stranger or any other person as administrator of an estate. His petition cannot invoke the exercise of probate jurisdiction, and therefore an appointment under such petition is equivalent to an attempted appointment with no petition. It follows, therefore, that the jurisdiction of the court to appoint an administrator of the estate of Thomas H. Clow-ard, deceased, was never invoked by the petition of G. T. Bean; the petition was a nothingness; and he obtained no rights to administer under the purported appointment based on such petition. When Bean, under the color of such appointment, assumed to administer the estate, he became as it were an administrator de son tort, chargeable by the estate for his conduct in the administration and entitled to receive from the estate only the expenses he necessarily incurred in preserving the estate and which inured to its benefit. The amounts paid to file his petition, the sums paid to appraisers, and for filing the inventory and publishing notice to creditors were unnecessary — 473 — expenses and not for the benefit of the estate. He therefore cannot recover them. So, also, any charges as administrator’s commission and attorney’s fees for handling the estate are not recoverable. The charge for costs and expenses in prosecuting the suit against Mason should be denied. The garage and granary was always in the hands of the heirs, where it belonged. The charges made for the Salina trip, which was of no value or interest to the estate, are therefore not recoverable by Bean. As an interloper he had no right, authority or interest to prosecute the suit against Mason and expenses incurred therein as attorney for himself could have no effect except the exploitation of the estate. It therefore was properly disallowed. What we have said applies only to appointment of general administrators or administrators de bonis non, and is not intended to refer to appointment of special administrators to preserve an estate pending appointment of a general administrator. We find no error in the rulings of the court and the judgment is affirmed with costs to respondent. HANSON and MOFFAT, JJ., concur.