In Re Sullivan's Estate , 112 Mont. 519 ( 1941 )

This is an appeal by the executor, Gerald Sullivan, from an order in probate denying a new trial of respondent's objections to his amended and supplemental final account and amended petition for distribution in the Estate of Annie Sullivan, deceased.

The account and petition listed among the assets administered and to be distributed "by cash, received as follows, to-wit: First State Bank of Stevensville, including interest $3,539.11," and included that item in the computation of inheritance tax and executor's and attorney's fees.

The respondent, Agnes Sullivan, the daughter and one of the legatees and devisees of testatrix and the sister of appellant, objected to the inclusion of that item "for the reason that the same is no part of the assets of said estate, in that the said account was a joint account of Annie Sullivan and Agnes Sullivan, and that the same became the absolute property of Agnes Sullivan upon the death of Annie Sullivan." She also objected "to the item of $28.13 inheritance tax assessed against her upon the ground that the same is excessive," and "to the item of $590.50, expenses of administration charged against her, for the reason that the same is excessive and more than her proportionate share of said expense."

On October 2, 1940, the court made an order sustaining the first objection for the reason that "the amount stated, in the First State Bank of Stevensville, was and is the property of Agnes Sullivan, never became a part of the Estate of Annie Sullivan, and should not have been listed, appraised nor considered as such," and sustaining the second and third objections that the items should not have been included in computing the inheritance tax and administration fees.

No appeal was taken from that order, but on October 14 the executor gave "notice of intention to move for a new trial" upon the grounds (1) that the evidence was insufficient to justify the decision, (2) that the decision was against the law, and (3) that material evidence had been newly discovered. The motion was heard on November 13 and denied on November 27, 1940. The notice of appeal was given on January 25, 1941, within sixty days after the denial of the motion for new trial but more than sixty days after the order of October 2, 1941, sustaining respondent's objections to the final account and petition for distribution.

The sole question is whether the court erred in denying the motion for new trial. The transcript includes the court records and the evidence at the hearing upon the objections for their bearing upon the first two grounds of the motion for a new trial, namely whether the court's decision on the objections was warranted by the evidence and the law; it includes also the affidavits filed upon the question of newly discovered evidence.

The evidence at the hearing discloses that while the executor[1] sought to hold as estate property the $3,500 Stevensville bank account standing in the joint names of Annie Sullivan and Agnes Sullivan or survivor, he did not list as estate property a similar Missoula bank account of $2,400 standing in the joint names of Annie Sullivan and himself or survivor. While it would go to him any way as residuary legatee, it should have been included if properly part of the estate, for determination of inheritance taxes and apportionment of expenses of administration. Both accounts were in exactly the same situation, so far as the evidence upon the objections showed. Both were originally the mother's accounts, and appellant testified that he obtained the bank book of the account in question here from respondent during the administration, and no question was raised concerning its possession by her during the mother's lifetime. The only reason given by him for the different treatment of the two accounts was that in the will of testatrix, which she signed by mark some two months before her death, she sought specifically to devise to Agnes Sullivan and Gerald Sullivan jointly, among other items, the Stevensville bank account which she had already made a joint survivorship account with her daughter Agnes over the signatures of both of them nearly two years before. But the will could not accomplish what her earlier action had put it out of her power to do; if it could the residual clause instead of the joint survivorship arrangement could equally well have been Gerald Sullivan's source of title to the Missoula bank account. The joint survivorship account was not only proved but conceded, and there was nothing to suggest that respondent's rights had not fully vested under it. Accordingly it is not made to appear that the order was not sustained by the law or the facts, or that the court erred in denying a new trial upon those grounds.

On the matter of newly discovered evidence the motion for rehearing was supported by the affidavit of a brother of respondent and appellant to the effect that his mother "would send Agnes" to the Stevensville bank with the pass book "whenever it was necessary to make entries," that the book "was always returned" to his mother after the entries had been made, and that "shortly before the death" of testatrix respondent had asked testatrix for it in order to have the interest entered and that testatrix had "hesitated in giving her the book for some reason or other"; and by the affidavit of one of the two sisters to whom, before filing his final account and petition for distribution, appellant had transferred his supposed one-half interest in the Stevensville account under the will, to the effect that eleven days before the death of testatrix affiant, respondent, another sister and testatrix were talking about the property, and respondent in affiant's presence took the Stevensville bank book out of a writing desk in the front room and that after their examination affiant saw respondent return it there. Presumably the purpose of this evidence was to question respondent's complete possession of or access to the bank book, and while it seems to show little more than a joint possession and access by the joint owners, we will assume that it serves that purpose. But the only effect of the affidavits could be, not merely to set forth evidence, but to set forth newly discovered evidence, and they can have application only to the question whether the court erred in denying a new trial upon that ground; but nothing whatever is stated in them or elsewhere in the record to indicate that the evidence had been discovered after the hearing; and certainly the presumption is otherwise since all affiants were interested in the estate from the beginning. It is not necessary to consider whether orders of this kind are subject to motions for new trial. (See State ex rel. Culbertson FerryCo. v. District Court, 49 Mont. 595, 144 P. 159; Davis v.Bell Boy Gold Mining Co., 101 Mont. 534, 54 P.2d 563; In re Antonioli'sEstate, 42 Mont. 219, 111 P. 1033.) Certainly, to say the least, the showing is not so clear that it can be said that the court erred in denying any one of the three grounds for a new trial.

But even if the merits were otherwise the appellant would be[2-4] entitled to no relief here, and the object of the above discussion of the merits has been only to show that appellant is in any event not injured by the outcome. The legislature has not only omitted orders denying new trials from the list of appealable orders (subd. 2 of sec. 9731, Rev. Codes), but has expressly abolished appeals from such orders (sec. 9745) and has expressly made that provision applicable to probate proceedings (sec. 10366; In re Blankenbaker's Estate, 108 Mont. 383,91 P.2d 401). It is also well settled that the motion for a new trial does not extend the time in which to appeal from the original adjudication of which a new trial is sought (In reBlankenbaker's Estate, supra; Griswold v. Ryan, 2 Mont. 47;Kline v. Murray, 79 Mont. 530, 257 P. 465), so that even if the appellant were attempting to appeal from the order of October 2, 1940, of which he makes no claim, the appeal of January 25, 1941, would be too late.

The order denying the new trial not being appealable, this court has no jurisdiction to determine whether the trial court erred in making that order, and no other question being before us in this proceeding, the appeal is therefore dismissed. The former opinion, filed on June 25, 1941, is hereby ordered withdrawn and the above opinion substituted in lieu thereof.

ASSOCIATE JUSTICES ANDERSON and MORRIS concur.