In re Phillips' Estate , 1896 Mont. LEXIS 282 ( 1896 )

HuNt, J.

It is argued by the respondents that this appeal will not lie because it was taken by Anna M. Phillips in her capacity as executrix of the will of her husband. ' To support the argument the case of Dewars’ Estate, 10 Mont. 422, is relied on. There the administrator appealed from an- order sustaining certain objections to the administrator’s final account, and from the decree of distribution. It was decided that in his official character the appellant had no interest in the decree of distribution, and his appeal was therefore dismissed. No statute was cited giving the administrator any right to resist the proceeding or order of the court appealed from. But in this case the appeal is from an order of partial distribution, applied for under sections 284, 285, Probate Practice Act (Comp. St. 1887), where, after the lapse of four months from the issuing of letters testamentary, a legatee may, upon giving certain security, apply for the legacy or share of the estate to which he is entitled.

By section 286 of the Code such an application may be resisted by the executor or any person interested in the estate. It was so decided in Estate of Kelley, 63 Cal. 106, upon an appeal from an order of partial distribution made under a statute of that state (section 1660, Code Civ. Proc. Cal.), precisely like section 286 of the Montana Probate Code. The reason of the statute must be that the executor, who is strictly bound to see to it that the estate is preserved for distribution to creditors and others who may be entitled thereto upon final distribution, is interested in resisting any order of distribution, made before final settlement, by which the assets of the estate may be dissipated to the injury of creditors’ rights. But, when final distribution is ordered, and his official trust is about terminated, and the creditors have had full time to present their claims, and all claims have been presented, and the heirs and legatees are in court, having done his duty by preserving the estate for distribution, then, as executor, he can have no interest in a claim of one legatee as against others, at the expense of the estate.

This appellant, therefore, had the right to appeal, as executrix from the order allowing a partial distributive share of the estate to the respondents. (Code Civ. Proc. 1887, § 445; In re McFarland's Estate, 10 Mont. 445.)

But as the appeal was taken by her in her official capacity we are limited to the consideration of any matters affecting her as executrix of the estate. In her individual capacity she does not appeal. Matters affecting only her personal share of the estate, as the widow of decedent, and as a legatee, are, therefore, not before us. (Merrifield v. Longmire, 66 Cal. 181, 4 Pac. 1176; Estate of Marrey, 65 Cal. 287, 3 Pac. 896; In re Jessup, 80 Cal. 625, 22 Pac. 260.) But,1 as executrix; she has no cause of complaint. In her objections she states that, by her final report filed, the balance in her hands is §9,659.05. Of this amount §4,100 was ordered distributed to the legatees under the will, leaving in her hands §5,559.05. This §5,559.05 is sufficient to cover §2,000 payable to the widow by the eighth clause of the will, besides all expenses of administration, and will still leave enough to cover the claim of the widow for a reasonable family allowance, if, by the statute, she is entitled to the same. As executrix, thereforé, Mrs. Phillips is not aggrieved.

One of the appellant’s objections particularly set forth, is that she had presented her final account as executrix, but the same had not been acted upon by the court; hence it could not be known what amount remained in the hands of the executrix subject to distribution, nor what amount should be paid to the several legatees under the will. This is answered by the record fact that the respondents only asked a partial distribution, as contemplated by law, and were only awarded a partial distribution upon giving bond to the executrix to indemnify the estate. Presumably the court made the decree upon a showing which warranted the order. If appellant were correct, and partial distribution can only be had after final accounts are allowed, there would be no use of the proceeding for a partial distribution, and the benefits of the statutes might be entirely lost. It was to avoid the hardship often incident to the long delays of the final accounting that, upon a sufficient showing, partial distribution might be had.

The next principal objection made by the executrix is that an action was pending against the executrix to recover the sum of §2,521.25 for moneys paid by the appellant in her individual capacity to defray funeral expenses of the decedent, and that until that action was decided, the court could not determine the amount of the funds which would be subject to the payment of the legacies contained in the will, or whether there would be sufficient to pay the partial amount directed to be paid by the order of the court appealed from in this case. The decision in the case of Phillips v. Phillips, Executrix, ante, page 305, is that the plaintiff could "not maintain the action referred to. The court, therefore; properly ignored tbe above mentioned suit of Mrs. Phillips, and her objections on account of its pendency, and included the sum of $2,5*21.25 in the estimate of funds in the hands of the executrix.

We have referred to a payment to the widow under the eighth clause of the decedent’s will. It is doubtful whether the will is before us at all for direct construction; but, as the meaning of the testator’s language was argued by counsel; and as our opinion will doubtless facilitate the final settlement of the estate, which is desired by all parties, we have considered the provision in dispute. The decedent, after directing the payment of the expenses of his last sickness and funeral, and the payment of the allowance by law made to his family surviving him, and all his just debts, bequeathed to his wife, Anna M. Phillips, all his property, “she to pay the bequests following. ’ ’ Then followed bequests to his brother, his parents, a friend, and, in case of his death by accident, certain additional bequests to his sister and her daughter. By the eighth clause of the will the testator provided as follows: £ ‘Under none of the provisions, of this, my last will, shall the share of my wife, Anna M. Phillips, be less than $7,000, inclusive of the $3,000 policy on my life in the Royal Arcanum, and another $2,000 policy on my life in the Ancient Order of United Workmen, payable now to her.”

We think the testator intended, by the language quoted, that his wife should be a preferred legatee in the sum of $2,000, to be paid out of his estate. We regard the references to the policies of life insurance as recognitions of the fact that, by adding $2,000 of his money to the $5,000 insurance to come to her as her own, she would be comfortably provided for. The testator simply desired that, when he died, his wife should be worth the sum of $7,000, — $5,000 of her own by policies, and $2,000 from his estate.

As said before, the matter of the allowance by the widow not being before the court by this appeal, no decision is made upon the action of the district court in disallowing her claim of allowance. It would seem, however, by a recent decision of the supreme court of California (in re Lux’s Estate, 100 Cal. 593, 35 Pac. 341), that the widow was entitled, as a matter of right, to a reasonable allowance during the progress of the settlement of the estate, and that her financial ability to support herself without aid from the estate is immaterial in considering the question of her right to such allowance. Judgment affirmed.

Affirmed.

PembertoN, C. J. concurs. De Witt, J., not sitting.