Dowd v. Estate of Dowd , 62 Idaho 157 ( 1940 )

The record discloses that respondent, the wife of the deceased, was appointed administratrix of deceased's estate, The Estate of David F. Dowd. Respondent claimed that certain alleged separate funds of herself made up a part of the estate of the deceased and she presented her claim therefor as a creditor to the probate judge for allowance under the provisions of section 15-621, I. C. A., and the claim was rejected. Respondent then filed suit in the district court of Bonneville county as provided in said section 15-621, I. C. A., naming "The Estate of David F. Dowd, deceased," as the only defendant. Five other alleged heirs of the deceased intervened in this suit. The case was tried to a jury resulting in a verdict in favor of respondent, whereupon judgment was entered on the verdict with the usual order that the claim be paid "in due course of administration." Three of the interveners, David G. Dowd, Gertrude Dowd Bartlett and Jenny Dowd Benthin, filed notice of appeal and appealed from the above-mentioned order or judgment as well as The Estate of David F. Dowd, deceased. The motion to dismiss was directed specifically against the appeal of "The Estate of David F. Dowd, deceased."

Section 15-621, I. C. A., under which respondent presented her claim and upon rejection brought her suit, provides:

"If the executor or administrator is a creditor of the decedent, his claim, duly authenticated by affidavits, must be presented for allowance or rejection to the probate judge, and its allowance by the judge is sufficient evidence of its correctness, and it must be paid as other claims, in due course of administration. If, however, the probate judge rejects the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the probate judge, who may appoint an attorney at the expense of the estate to defend the action. If the claimant recovers no judgment, he must pay all costs, including defendant's attorney's fees."

The rule appears well settled that a judgment rendered for the plaintiff in a proceeding brought under section 15-621, I. C. A., is not personal but merely establishes the claim against the estate to the same effect as though the claim had beenallowed against the estate by the probate judge. (In re More'sEstate, 121 Cal. 635, 54 P. 148; Norton v. Norton's Estate,41 Cal. App. 614, 183 P. 214. See also McElroy v. Whitney,24 Idaho 210, 133 P. 118.) In the case of In re More's Estate,supra, the court uses the following language:

"Section 1504 of the Code of Civil Procedure (Section 15-615 Idaho Code Annotated) provides:

'A judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge; and the judgment must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due.' And section 1510 of the same Code (Section 15-621, I. C. A.) provides: 'If the executor or administrator is a creditor of the decedent, his claim duly authenticated by affidavit must be presented for allowance or rejection to a judge of the superior court, and its allowance by the judge is sufficient evidence of its correctness, and must be paid as other claims in due course of administration. If, however, the judge reject the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the judge, who may appoint an attorney, at the expense of the estate, to defend the action.' The action of More against the Estate of More was brought, and the judgment recovered, under the last named section; but we do not considerthat the judgment had any greater force or effect than would ajudgment recovered under the section first named. It did, however, establish the claim in the same manner as if it had been allowed by the judge, and was prima facie evidence of its correctness. The judgment was, however, subject to beafterwards contested by any person interested in the estate, inthe same manner and to the same extent as other allowed claimsmight be contested. But in all such cases the burden is upon the party contesting to show that the claim was not properly allowed. In re Loshe's Estate, 62 Cal. 413; In re Swain'sEstate, 67 Cal. 637, 8 Pac. [497] 94." (Emphasis inserted.)

To the same effect see: Saunders v. Simms, 183 Cal. 167,190 P. 806; Morton v. Adams, 124 Cal. 229, 56 P. 1038, 71. Am. St. 53; Hall v. Cayot, 141 Cal. 13, 74 P. 299; Doehla v.Phillips, 151 Cal. 488, 489, 91 P. 330.

Section 1504 of the Code of Civil Procedure of California contains provisions the same as those contained in section 15-615, Idaho Code Annotated, and likewise California Code of Civil Procedure, section 1510 is like section 15-621, Idaho Code Annotated. The courts of California considering provisions of their statutes which are the same as sections 15-615 and 15-621, I. C. A., have announced and many times re-iterated the rule that a judgment recovered under a statute containing the provisions of section 15-621, I. C. A., has no greater force or effect, but has the same force and effect, as a judgment recovered under the provisions of a statute such as section 15-615, I. C. A. The effect of a judgment under section 15-615, I. C. A., is announced in its provisions, namely:

"A judgment rendered against an executor or administrator upon any claim for money against the estate of his testator or intestate only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the probate judge, and the judgment must be that the executor or administrator pay in due course of administration the amount ascertained to be due. A certified transcript of the judgment must be filed in the probate court. No execution must issue upon such a judgment, nor shall it create any lien upon the property of the estate or give to the judgment creditor any priority of payment."

From the foregoing provisions and from authorities construing such a section it appears that a so-called judgment obtained by the administratrix as a creditor against the estate, is not a final judgment, it is not subject to execution, it creates no lien upon the property of the estate and does not give to the judgment creditor any priority of payment, and such a judgment payable "in due course of administration" is subject to be afterwards contested by any person interested in the estate, in the same manner and to the same extent as other allowed claims might be contested.

In Beckett v. Selover, 7 Cal. 215, 229 [68 Am. Dec. 237; andEstate of Schroeder, 46 Cal. 304, 318, it is held that a judgment against an administrator stands on no better footing than an allowed claim, and that section 1504, California Code of Civil Procedure (sec. 15-615, I. C. A.) expressly declares them to be of same effect and the same rules apply to both, and that on an application for sale of real estate, heir or devisee may get behind an allowed claim or judgment against administrator and show the same is not justly due from the estate, but that the allowance of claim or judgment is prima facie evidence of indebtedness and must be overcome by the contestant upon whom the burden of proof is cast. In other words, it has been held that a judgment against an administrator by a third party creditor and a judgment in favor of an executor or administrator, as a creditor, against the estate merely establishes the claim, leaving it subject to contest by any party interested.

In Hall v. Cayot, 141 Cal. 13, 74 P. 299, the court said:

"A judgment rendered against an executor or administrator upon any claim for money against the deceased only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge (section 1504, Code Civ. Proc.), and such a judgment is no more effectual as an estoppel than an allowance of the claim would be, for it can be contested by the heirs on the settlement of an account in the same manner as a claim allowed by the executor or administrator and judge can be contested (section 1636, Code Civ. Proc.;Estate of More, 121 Cal. 635, 54 P. 148)."

See also: Estate of Glenn, 74 Cal. 567, 16 P. 396; Finleyv. Carothers, 9 Tex. 517, 60 Am. Dec. 179; Estate of Wiley,138 Cal. 301, 71 P. 441; McLean v. Crow, 88 Cal. 644,26 P. 596; Rice v. Inskeep, 34 Cal. 224, 226.

In Haub v. Leggett, 160 Cal. 491, 494, 117 P. 556, the effect of such a judgment is well considered, the court saying:

"A judgment in an action against the executor upon a money demand against the estate 'only establishes the claim in the same manner as if it had been allowed by the executor or administrator and a judge.' Code Civ. Proc., sec. 1504. (Sec. 15-615, I. C. A.) The executor must in his accounts 'exhibit all debts which have been presented and allowed.' Sections 1628, 1622. (Section 15-1108, I. C. A.) Any allowed claim so exhibited may be contested by the heirs, and a trial by jury may be demanded thereon. Section 1636 (sections 15-1109, 15-1110, 15-1111, I. C. A.) Upon the settlement of such account the court must make an order for the payment of the debts (section 1647) (Section 15-1128, I. C. A.) and the executor thereupon becomes personally liable to each creditor therefor, and execution may issue against him (section 1649) (Section 15-1130, I. C. A.)

"These provisions show that an allowed claim against anestate does not attain to the dignity and force of an absolutejudgment until, upon the settlement of an account, an order ismade directing the executor to pay it. Prior to that time itranks as an acknowledged debt, but it is still subject tocontest by the heirs. It has not become conclusive in favor of the claimant. The decisions of this court have always recognized the inconclusive effect of an allowed claim." (Emphasis and I. C. A. sections inserted.)

From these statutes and authorities it appears that the so-called judgment, allowing the claim, has not become final but is subject to contest at the time of the settlement of the account of the administratrix. It does not have the dignity of a "final judgment in an action or special proceeding commenced in the court in which the same is rendered"; from which an appeal may be taken to this court. (Sec. 11-201, I. C. A.)

"A judgment, order, or decree, to be final for purposes of an appeal or error, must dispose of the cause, or a distinct branch thereof, as to all the parties, reserving no further questions or direction for future determination. It must finally dispose of the whole subject-matter or be a termination of the particular proceedings or action, leaving nothing to be done but to enforce by execution what has been determined. In other words, a final judgment is one which operated to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court, and must be final in all matters within the pleadings. An exception to this rule is apparently recognized by some courts with regard to matters distinct from the general subject of litigation. A judgment cannot be regarded as final for the purposes of jurisdiction until entered in a court from which execution can issue. And where some thing more than the mere ministerial execution of the decree as rendered is left to be done, the decree is interlocutory, and not final, even though it settled the equities of the bill."

Section 22, page 860, 2 American Jurisprudence.

Appeals can only be taken from judgments that are final or those from which appeals are specifically provided. (BlaineCounty National Bank v. Jones, 45 Idaho 358, 262 P. 509.) No right of appeal is specifically provided for and no method is provided whereby an appeal may be prosecuted from a judgment such as that herein considered. Where it appears from the record that no final judgment was rendered an attempted appeal should be dismissed. (Thiessen v. Riggs, 5 Idaho 21,46 P. 829; Continental C. Tr. Sav. Bank v. Werner, 33 Idaho 764,198 P. 471; Blaine County Nat. Bank v. Jones, supra; Witty v.Wells, 39 Idaho 20, 225 P. 1020.)

Section 15-1108, I. C. A., provides:

"When required by the court, either upon its own motion or the application of any person interested in the estate, the executor or administrator must render, for the information of the court, an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims presented against the estate and the names of the claimants, and all other matters necessary to show the condition of its affairs."

Section 15-1133, I. C. A., provides for final account as follows:

"At the time designated in the last section, or sooner, if within that time all the property of the estate has been sold, or there are sufficient funds in his hands for the payment of all the debts due by the estate, and the estate be in proper condition to be closed, the executor or administrator must render a final account and pray a settlement of his administration."

Section 15-1115, I. C. A., provides for notice of settlement of any account:

"When any account is rendered for settlement, the court or judge must appoint a day for the settlement thereof; the clerk must thereupon give notice thereof, by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of the account, which must be on some day of a term of the court. The court or probate judge may order such further notice to be given as may be proper."

Section 15-1118, I. C. A., provides for exceptions to settlement:

"On the day appointed, or any subsequent day to which the hearing may be postponed by the court, any person interested in the estate may appear and file his exceptions in writing to the account and contest the same." (Chandler v. Probate Court,26 Idaho 173, 141 P. 536; Needham v. Needham, 34 Idaho 193,200 P. 346.)

Section 15-1119, I. C. A., provides for the hearing of exceptions:

"All matters, including allowed claims not passed upon on the settlement of any former account, or on rendering an exhibit, or on making a decree of sale, may be contested by the heirs for cause shown. The hearings and allegations of the respective parties may be postponed from time to time, when necessary, and the court may appoint one or more referees to examine the accounts and make report thereon, subject to confirmation; and may allow a reasonable compensation to the referees, to be paid out of the estate of the decedent."

Section 11-401, I. C. A., provides for an appeal from the order of the probate court settling an account:

"An appeal may be taken to the district court of the county from a judgment, or order of the probate court in probate matters; . . . .

5. Settling an account of an executor, administrator, or guardian. . . . ."

No intervention by heirs or devisees or interested parties in a suit by an administratrix to establish her claim as a creditor is provided for by statute. The only manner provided by statute for interested parties to contest is upon or at the time of the settlement of an account of the administratrix, at which time interested parties may contest and may appeal from the order of the probate judge settling the account. Certainly it was not intended that heirs or devisees could intervene in a suit for the allowance of a claim, thereafter prosecute an appeal from an adverse ruling, and thereafter again contest the payment of the claim by exceptions to the settlement of the accounts of the administratrix, followed by a further appeal from an adverse ruling, namely an order settling the account. To hold otherwise than that the appeal should be dismissed against all appellants, the administratrix in the instant case would be required to pay in part out of her share of the estate, attorneys fees and costs in carrying on the litigation, a contest of her own claim. It appears that the intervention of the claimed heirs of the estate was premature or improper and the appeal should be dismissed.

ON PETITION FOR REHEARING. (Jan. 3, 1941.)