In re Jones' Estate

190 P. 783, 56 Utah 291, 1920 Utah LEXIS 47

• Court: Utah Supreme Court
• Decided: June 9, 1920
• Docket: No. 3427
• Status: Published

Opinion

CORFMAN, C. J.

William H. Jones, a resident of Box Elder county, Utah, died at Salt Lake City, May 6, 1918, possessed of certain real and personal property situated in said Box Elder county. He left surviving him certain brothers and sisters, all of lawful age. June 3, 1918, B. H. Jones, one of the brothers of said William H. Jones, deceased, filed in the district court of Box Elder county a certain document purporting to be the last will and testament of said William H. Jones, deceased. At the same time a petition was filed, asking that the will be admitted to probate in said court. Before hearing on the petition of said B. H. Jones for the admission of said will to probate, to wit, May 27, 1919, certain heirs of decedent and parties interested in the said estate filed in said court their petition for the appointment of a special administrator of said estate. Said petition was granted, and an order made and entered by said court on June 2, 1919, appointing one John M. Jones, a brother of deceased, as special administrator of said estate, with the usual statutory powers of preserving the same. Said special administrator duly qualified. Other proceedings were had before said court concerning the matters of said estate, not material nor necessary to relate here.

An appeal was taken to this court from the said order appointing a special administrator by filing the usual notice thereof in said district court November 28, 1919, by Alice H. • Rosenbaum, one of the sisters of said deceased and one of the legatees named in the alleged will.

The special administrator appears as respondent, and objects to the right of appellant to be heard on the merits, setting forth, not only many alleged irregularities and failures to comply with our statutes governing appellate procedure, but'particularly challenging the appellant’s right to be heard on the ground that the order of the district court appointing a special administrator of the estate of said decedent was not a final judgment nor an appealable order.

We think the position taken by respondent is well founded. Section 9 of article 8 of our state Constitution, with reference to appeals from the district courts, provides among other things:

“Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, and in cases of guardianship, as shall he provided hy law.”

Comp. Laws Utah 1917, section 6990, provides:

“From all final judgments of the district courts, there shall he a right of appeal to the Supreme Court. * * * Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, and in cases of guardianship.” -

Comp. Laws Utah 1917, section 7606, provides:

“When there is delay in granting letters testamentary or of administration from any cause * * * the court must appoint a special administrator to collect and take charge of the estate of the decedent in whatever county or counties the same may he found, and to exercise such other powers as may he necessary for the preservation of the estate.”

No express provision is made in our Code of Civil Procedure giving a right of appeal from an order appointing a special administrator, nor do we think any such right was intended or may be reasonably implied from the reading of the foregoing constitutional or statutory provisions. 1, 2 The right of appeal does not exist unless given by constitutional or statutory authority, expressed or necessarily implied. Woerner, Am. Law of Adm. (2d Ed.) section 543, p. 1192; Golding v. Jennings, 1 Utah, 135; Benson v. Anderson, 9 Utah, 154, 33 Pac. 691; In re Carpenter, 73 Cal. 203, 14 Pac. 677. The order here appealed from was not a final order or decree. The order was not determinative of any of the rights of the parties before the district court. The very purpose of section 7606, supra, was to provide the means whereby the property belonging to the estates of decedents might be preserved while proceedings are pending for the appointment of an administrative officer by the court having jurisdiction of the estate. To hold otherwise than that no appeal lies from such an appointive order would nullify and render ineffective the manifest intent and purpose of the Legislature by its enactment.

It is therefore ordered that the appeal be dismissed.

FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.