In re Estate of Smith

426 P.2d 575, 149 Mont. 326, 1967 Mont. LEXIS 356
CourtMontana Supreme Court
DecidedApril 18, 1967
DocketNo. 11288
StatusPublished

This text of 426 P.2d 575 (In re Estate of Smith) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Smith, 426 P.2d 575, 149 Mont. 326, 1967 Mont. LEXIS 356 (Mo. 1967).

Opinion

MR. CHIEF JUSTICE JAMES T. HARRISON

delivered the Opinion of the Court.

This is an appeal by a removed administratrix from the orders removing her, setting her fees and the fees of her attorneys and from the order denying her consolidated motion which sought various matters. The hearing of this appeal was expedited in the following manner.

A petition was filed in this Court by one of the attorneys for the children heirs in the estate and newly appointed administratrix de bonis non asking this Court to' expedite the appeal which had been made by the removed administratrix from the three mentioned orders under the provisions of Rule 3, M.R. App.Civ.P. Following an ex parte hearing, an order was issued by this Court on February 14,1967, requiring the removed administratrix and her attorneys to appear and to show cause why they should not be required to comply fully with the orders of the district court from which they were appealing and to show cause why the appeal should not be expedited. On February 27, 1967, the matter was argued before this Court, and an order was made and entered which set forth the terms-of a stipulation that was entered into between counsel for both parties. The order provided that the appeal would be deemed [328]*328submitted when the conditions of the stipulation were met, and such has been done.

The facts of this controversy are far from simple, and our recitation of the facts is not intended to be complete in minute detail. The relevant facts are these:

On April 12, 1964, Samuel H. Smith died at the age of 82. Mr. Smith was survived by his widow, Elsie E. Smith, and six adult children. The children were the product of a former marriage of Mr. Smith. The record reveals that if a strained relationship did not exist between the stepmother, Elsie E. Smith, and her adult stepchildren prior to Mr. Smith’s death, such a strained relationship quickly developed after his death.

About one month after Mr. Smith’s death a petition for probate of will was filed in the district court. Subsequent investigation determined that Mr. Smith had made a later will which revoked the one which had been filed for probate, and also that Mr. Smith had subsequently revoked the later will. Hence on June 24, 1964, letters of administration were issued to Elsie E. Smith (hereinafter referred to as Mrs. Smith or the administratrix) .

The bulk of Mr. Smith’s estate consisted of an unencumbered cattle ranch, a herd of cattle, and sundry ranch equipment. The debts which Mr. Smith owed at his death were less than $15,000.00, and this amount of debt is quite small in relation to the value of the estate. It was necessary to liquidate the real and personal property of the estate by sale in order to prepare for distribution.

' The cattle ranch contained over 10,000 acres of land; and, when it was finally sold on November 8, 1965, its purchase price was $286,218.35. The purchasers of the ranch had to borrow the money to make the purchase. Before the attorneys representing the insurance company loaning the money would free the major portion of the purchase price (some $258,418.35) for delivery to the estate, they required certain minimum title requirements be met by the estate. In essence all that was re[329]*329quired was that proper determination of heirship be made. On May 11, 1966, the insurance company’s attorneys asked Raymond W. Brault, Esq., one of the attorneys for the administratrix, about the status of the title. Following this inquiry, during the summer of 1966, the administratrix made two attempts to determine heirship, but both of these attempts were defective. On September 22, 1966, the insurance company attorneys wrote a letter to Mr. Brault offering to conclude the determination of heirship themselves since they had assured the insurance company that there would be no delay in concluding the sale which had taken place nearly one year before. There is no indication in the record that Mr. Brault ever took advantage of this offer which undoubtedly would have allowed the insurance company to release the remaining portion of the purchase price.

Thus, from November 8, 1965, until the present time, a sum of nearly $260,000.00 has been unavailable to the estate simply because the administratrix did not comply with minimum requirements concerning the title to the cattle ranch. The explanations, if they can be called explanations, offered by the administratrix and her attorneys as to why such an unreasonable delay has taken place are unsatisfactory to this Court as they were to the district court. We will make further comment on this matter later in the opinion.

Four district court judges signed various papers and orders in this estate. However, only the last two judges to appear in the estate are of consequence in this proceeding. Thus, we will refer to them by name when such reference is necessary.

On July 4, 1964, the administratrix received an order of the district court authorizing her to continue the business of her deceased husband. The administratrix, even prior to her appointment as such, (we need not explain the various procedures) petitioned the district court at various times for permission to sell personal property.

In December, 1964, the children heirs employed a law firm [330]*330to look into the matter of their father’s estate. On December 15, 1964, Henry Loble, Esq., one of the members of the firm employed by the children heirs, wrote a letter to Robert J. Brooks, Esq., an attorney for the administratrix, requesting a copy of the inventory of the estate. Of course, no inventory was available at that time since the first inventory was not filed until December 24, 1964, some three months later than required by Section 91-2201, R.C.M.1947, which requires the administratrix to file her inventory and appraisement within three months after her appointment. On April 9, 1965, an amended inventory and appraisement was filed. The accuracy and detail of this amended inventory and appraisement leave some things to be desired.

Mr. Loble wrote letters to Mr. Brooks on June 2, 14, and 29, 1965, seeking information concerning the progress of the estate. Finally, on July 29, 1965, Mr. Brooks answered.

On August 23, 1965, a petition for removal of administratrix was filed. The petitioner seeking removal of the administratrix was Lois Ann Smith Pyle, a daughter of the deceased. When this petition was filed, the petitioner, the other children heirs, and their attorneys were unaware that the administratrix had filed her first account on August 20, 1965, some fourteen months after she had been appointed administratrix. Section 91-3501 requires such accounting to be made not more than six months after appointment.

An order suspending the powers of the administratrix and citing her to appear was filed on August 23, 1965. The hearing was set for September 8, 1965, and at the hearing testimony was taken concerning the first accounting and report. At the close of the hearing, District Judge A. B. Martin admonished the administratrix in the following manner: “Now, you realize, Mrs. Smith, that you as an Administratrix are charged with what we call a trust, that is, you are holding this property in trust for all of the heirs as well as yourself, and the law imposes upon your diligence, and in the event you fail to be dili[331]*331gent, that is, you are dilatory there are proceedings by which the Administratrix can be removed and the task turned over to someone else. Now, the Court is not saying that possibly you are at fault.

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In Re Jennings' Estate
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Cite This Page — Counsel Stack

Bluebook (online)
426 P.2d 575, 149 Mont. 326, 1967 Mont. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-smith-mont-1967.