Christensen v. Martin

TURNER, Justice. Mary Ann Martin died intestate in Sanpete County, Utah, on January 28, 1917. She left surviving, her husband, Samuel Henry Martin, three daughters and a son. The daughters were Jessie Martin Freston, Esther Martin Jackson and Sylvia Martin Reynolds. The son was Samuel Martin. At the time of Mary Ann Martin’s death all of her children were living. Samuel Henry Martin, the surviving husband of Mary Ann Martin, died intestate in Sanpete County, Utah, on April 16, 1944. Sylvia Martin Reynolds was his only child surviving him. His daughter Jessie Martin Freston died June 39, 1928. She left surviving, her husband, a son and a daughter. Esther Martin Jackson, the other daughter, died September 6, 1939. She was survived by her husband and five children. Samuel Martin, the only son of Mary Ann Martin and Samuel Henry Martin, died March 17, 1943, survived by his wife, Ruby A. Martin, and three sons, namely, Lowell, Reed and Fremont Martin. A few days after the death of Samuel Henry Martin, Sylvia Martin Reynolds, joined by Alice Freston Olsen and David E. Freston, the daughter and son of Jessie Martin Freston, deceased, filed a petition in the District Court, Probate Division, of Sanpete County, asking that Sylvia M. Reynolds be appointed administratrix of the joint estates of Mary Ann Martin and Samuel Henry Martin. The petition — 133 — contained allegations of the deaths of Mary Ann Martin and Samuel Henry Martin; that each had died intestate; and that each had left estate situated in Sanpete County. The petition also contained an allegation as to who were the surviving heirs of the intestate parties. Upon the face of the petition it is apparent that the surviving spouses of the children of Mary Ann and Samuel Henry Martin who survived their mother, but who preceded the father in death, were not named as heirs. The petition also definitely alleges that Mary Ann Martin left estate consisting of real estate with some improvements and that Samuel Henry Martin left estate consisting of both real and personal property. From the descriptions of the realty it is certain that the property of the one is not property inherited from the other. Lowell, Reed and Fremont Martin, surviving sons of Samuel Martin and grandsons of Mary Ann and Samuel Henry Martin, filed objections to the petition just mentioned. They also filed an answer and with it filed a cross-petition. They objected to the appointment of Mrs. Reynolds under Sec. 102-4-5, U. C. A. 1943, on the ground that she was a married woman. When the petitioners and objectors came before the court this ground of objection was recognized by the court. Mrs. Reynolds and her co-petitioners then nominated Paul E. Nelson for appointment as administrator. This was objected to and after a hearing the court denied the cross-petition of Lowell Martin and his brothers for the appointment of Lowell Martin as administrator; denied the request of Mrs. Reynolds for the appointment of Paul E. Nelson, and appointed James Frost as administrator, who then qualified. Subsequently Mrs. Reynolds petitioned the court for the discharge of James Frost on the ground that he refused to act. Mr. Frost later filed a written resignation and was discharged as administrator. We shall not attempt to state all the details of the proceedings. The nomination of Paul E. Nelson was revived, findings and conclusions were made and entered and Nelson was appointed to act as administrator of the estates. The — 134 — cross-petition of Lowell Martin et al., asking for his own appointment, was again denied. The record shows that Nelson refused to qualify and on December 28, 1944, a third petition for letters of administration was filed by Mrs. Reynolds and the two grandchildren asking for the appointment of Hans Christensen, a stranger to the estates, as administrator. After issues were joined a hearing was had and the court appointed Christensen administrator to administer both estates jointly. It is from this order that the objectors appeal. No attempt was ever made to probate the estate of the mother, Mary Ann Martin, until these proceedings were commenced following the death of the father, Samuel Henry Martin, in which the petitioners asked for administration of the two estates jointly. In. support of its order appointing Christensen administrator of the estates, the court found, in substance, that Mary Ann Martin died intestate on January 28, 1917, and at the time of her death she was the owner of a tract of land containing 4.7 acres upon which there is a small home and other improvements of the probable value of $509 with an annual rental value of about $47.59; that she left surviving her as her heirs at law her husband and the four children hereinabove named; that Samuel H. Martin, the husband," died intestate April 16, 1944, and at the time of his death he was owner of a tract of farm land (located across the road and to the west of the home property) containing 26.22 acres, together with ten shares of the capital stock of the Moroni Irrigation Company, subject to a certain tax deed and a claimed ownership by Ruby A. Martin, the widow of the deceased son Samuel Martin; that the water right is represented by a certificate of stock issued to Ruby A. Martin prior to the death of Samuel H. Martin; that the probable value of this land is $2699 and the water stock $759 and that the land has an annual rental value with the water right of about $269.99; that the deceased also died possessed of a small amount of cash and personal property; that all of the property described is in the possession of Ruby A. Martin who claims to be the owner thereof and that it may — 135 — be necessary that an action be brought to recover possession and quiet the title to such property for the use and benefit of the heirs and creditors of the estates. By assignments of error, appellants (objectors) raise several questions on this appeal which may be condensed and substantially stated as follows: (1) That the court erred in appointing Christensen as administrator on the nomination of Mrs. Reynolds on the ground that her disqualification to act as administratrix because of being a married woman deprived her of the right to nominate; (2) that the court erred in appointing Christensen and ordering a joint administration of the two estates because the property of Mary Ann Martin did not descend to the estate of Samuel Henry Martin and there is a diversity of heirship which precludes joint administration and the court failed to so find; and (3) that the court erred in appointing an administrator of either or both estates because the record shows that Ruby A. Mar-ton, the widow of the deceased son Samuel Martin, at the time of filing the third petition for letters was the owner of the real estate and water stock involved. (1) As to the question of nomination, we quote Sec. 102-4-5, U. C. A. 1943, relating to the competency of married women to act as administratrices: “When objection is made by any person interested in an estate, a married woman must not be appointed administratrix. When an unmarried woman appointed administratrix marries, the court may, upon the motion of any such interested person, revoke her authority and appoint another person in her place.” Sec. 102-4-1, U. C. A. 1943, relating to whom letters of administration may be granted, provides: “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. — 136 — “(3) The father or mother. “(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.” (Italics added.) Appellants contend that when they objected to the appointment of Mrs. Reynolds as administratrix on the statutory ground that she was a married woman, she thereby was rendered incompetent and was deprived of any right to nominate an administrator, or, if she was not so deprived, she lost or waived any further right of nomination when she nominated Paul E. Nelson who refused to qualify and act. Sec. 102-4-4, U. C. A. 1943, relating to persons incompetent to act as administrator or administratrix, provides that: “No person is competent or entitled to serve as administrator or administratrix who is either: “(1) Under the age of majority or an incompetent person; but in such cases letters must be granted to his or her guardian, or, in the discretion of the court, to any person entitled to administration; “(2) Not a bona fide resident of the state; but if the person entitled to serve is not a resident of the state, he may request the court or judge to appoint a resident of the state to serve as administrator, and such person may be appointed; “(3) Convicted of an infamous crime; “(4) Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity; or, “(5) The surviving partner of a firm of which the decedent was a member.” This statute expressly designates those who are incompetent to act as a matter of law. Even strangers to the estate, if otherwise qualified, may be appointed to administer it. — 137 — Appellants argue that, because of the disqualification of Mrs. Reynolds to serve by reason of being a married woman, she thereby became incompetent to nominate an administrator. She falls in the second class of persons enumerated by Sec. 102-4-1, supra. Grandchildren fall in the fifth class so enumerated. This statute further provides that: “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.” (Italics added.) Mrs. Reynolds became disqualified to serve when objection was made as provided in the statute, but such disqualification did not render her incompetent to nominate. This right was not exhausted when she nominated Nelson and he refused to qualify and act. It should be remembered that Mrs. Reynolds filed her petition for letters shortly after the death of her father and within the three months period prescribed by the statute and thus preserved this right. See Sec. 102-4-8, U. C. A. 1943; In re Johnson’s Estate, 84 Utah 168, 35 P. 2d 305; In re Smith’s Estate, 85 Utah 606, 40 P. 2d 180; In re Owens’ Estate, 30 Utah 351, 85 P. 277. Even though the statute declares them to be incompetent to administer an estate, infants and incompetents, through guardians, and nonresident heirs may exercise the right of nomination under the statute. Appellants do not seriously contend that there is merit to' their argument that Mrs. Reynolds “waived” her right to nominate. A right cannot be waived by exercising it. Had' she failed to file a petition for letters of administration within the statutory period, she might have waived her right to nominate. The cases cited by appellants on this: point involve express waivers under circumstances not involved in the instant case and are therefore of no assistance. (2) In considering this question of joint administration and heirship, we quote Sec. 102-4-6, U. C. A. 1943: “In all cases where the estate left by a deceased person has descended from another deceased person whose estate has never been probated, — 138 — 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.” Appellants contend that the estate, if any, of which Samuel Henry Martin died' possessed, did not descend from Mary Ann' Martin, his wife, who predeceased him over twenty-seven years; that Mary Ann and Samuel Henry Martin never held the property involved as tenants in common and that the heirs in the two estates are not the same, and therefore it was error for the court to order administration of both estates jointly. At the time of the intestate death of Mary Ann Martin, the succession statute which applied to any estate left by her was substantially as it now appears in Sec. 101-4-5 (1), U. C. A. 1943: “* * * if the decedent leaves a surviving husband * * * and more than one child living * * * one-third to the surviving husband * * * and the remainder in equal shares to his children, and to the issue of any deceased child by right of representation * * * ¡f Samuel Henry Martin, the husband, and four children survived Mary Ann Martin at her death. The husband under the above statute therefore inherited an undivided Ys interest in the estate left by the deceased wife; the remainder went to the children. At the time of the intestate death of the father, one daughter, Mrs. Reynolds, and the children of the two deceased daughters and of the one deceased son survived him. The succession statute applying to the estate at that time is contained in Sec. 101-4-5 (2), supra, as follows: “If the decedent leaves no surviving husband or wife, but leaves issue, the whole of the estate goes to such issue, and if such issue consists of * * * one child living and the issue of one or more deceased children, then the estate goes in equal shares to the * * * child living and the issue of the deceased * * * children by right of representation.” — 139 — Sec. 101-4-23, U. C. A. 1943, provides that: “Inheritance or succession ‘by right of representation’ takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living * * The statute, Sec. 102-4-6, first above quoted under this heading, has been construed by this court only once before (In re Cloward’s Estate, 95 Utah 453, 82 P. 2d 336, 338, 119 A. L. R. 123) and in that case the construction hinged on the question as to when an estate has been probated. However, the opinion in that case poses several questions as to the meaning and interpretation of this section which it was not necessary there to answer, but of which two at least must be answered in the instant case, namely: “ * * * (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?” (Italics added.) We construe that statute, at least under the facts presented in the case at bar, as containing two parts which must be read separately as follows: First, “In all cases where the estate left by a deceased person has descended from another deceased person whose estate has never been probated, * * * 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.” And, second, “In all cases * * * 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,” etc. In the instant case the estate left by Samuel Henry Martin consisted of the 26.22 acre tract of farm land, the water — 140 — stock and some personal property which he owned in his own right at the time of his death, and an undiveded i/3 interest in the estate left by Mary Ann Martin, the other “deceased person.” Following the language of the statute, therefore, it cannot be said that “the estate” left by Samuel Henry Martin “descended from another deceased person,” within the strict meaning of the words quoted when only a small fraction of his estate so descended. Applying the second provision of the section to this case, in view of appellants’ contention that the heirs in the two estates are not the same, it is conceded that the property involved in the estates was never held by the deceased parents as tenants in common during their lifetime, and therefore this provision has no application here. Appellants contend that the surviving spouses of the two deceased daughters and the one deceased son are heirs of the estate of Mary Ann Martin but not the heirs of Samuel H. Martin and that as such heirs they were entitled to notice of the probate proceedings, which was not given. Sec. 102-4-8, U. C. A. 1943, provides: ■“When a petition praying for letters of administration is filed, the court or clerk must set the petition for hearing and give notice thereof by publication or by posting and by mailing notices to the heirs.” (Italics added.) Who are the heirs of the estate of Mary Ann Martin, deceased? She was survived by her husband and four children. Three of these children died after the mother’s death and prior to the death of the father. That part of the mother’s estate which passed to these children who are now deceased, passed to their heirs upon their respective deaths. Therefore, the inheritance of these three deceased children passed to the surviving spouse and children of each. Thus, the surviving spouses became heirs of their deceased spouses, but they are not the heirs of Mary Ann Martin, their mother-in-law. The result of our consideration of this second question, therefore, is that the court erred in appointing an adminis — 141 — trator to administer the two estates jointly because “the estate” left by Samuel Henry Martin did not descend from his deceased wife, Mary Ann Martin, within the meaning of Sec. 102-4-6, supra. (3) The third question relates to title of the real and personal property involved in both estates. The court found that, at the time of her death, Mary Ann Martin owned the 4.7 acre tract of land on which the family home is located, but found that Ruby A. Martin claims title thereto by virtue of tax deeds from the county. The petitioners (respondents herein) contend that her title is void. Also, the court found Samuel Henry Martin to be the owner of the 26.22 acres of farm land at the time of his death, subject, however, to the claim of Ruby A. Martin that she is the owner of this land under a warranty deed executed and delivered to her by Samuel Henry Martin prior to his death, and that she is the owner of the water stock involved which is evidenced by a certificate of stock issued in her name prior to the father’s demise. Respondents also contend that these claims of ownership are void. The case of Hampshire v. Woolley, judge, 72 Utah 106, 269 P. 135, 138, is controlling on this point. There it was held that “under the provisions of Secs. 7733' and 7734 of the Prohate Code of this state [Secs. 102-11-18, 102-11-19, U. C. A. 1943] the [Probate] court is not given the power to hear and determine the title to property where the same is held under a claim of title.” It may be necessary, as contended for by respondents, that appropriate suits to quiet title be instituted. The order and judgment of the lower court is reversed with costs to appellants. LARSON, C. J., concurs.