DocketNumber： No. 2980
Judges： Application, Barnes, Bist, Dist, Guernsey, Hornbeck, Original, Required, Should, Sustained, Thinks
Filed Date： 7/20/1939
Status： Precedential
Modified Date： 11/12/2024
OPINION
We have heretofore in the opinion in case No. 2979 considered and passed
That the Court erred:
1. In holding, treating and regarding Grover C. Brown as a party to the proceedings on the exceptions to the account of Lewis C. Freeman, as administrator of the estate of Henry V. Butler, deceased.
This assignment of error is well made.
2. In requiring the said Grover C. Brown to submit for examination securities of which he is the owner and a list of which appears in the judgment of the said Probate Court filed September 2, 1938.
In this determination we hold that the Court did not err.
The question is not at all free from doubt, but we are inclined to support any reasonable action of the Probate Judge though summary which has for its obvious effect the preservation of the assets of an estate which but for such action may be dissipated. In supporting the action of the trial judge in this regard we are granting the extreme limit of authority.
Mr. Brown at the time of the hearing before the Master, was in possession of the securities which he held at least under color of title. The specific securities which were impounded upon the order of the court had been ordered sold upon the application of the administrator under date of August 26, 1936. The application requests authority to sell the securities at the “best market price on the day that the administrator is able to offer them for sale” and it was so ordered. There may be some question of ethics in the purchase of these securities by Brown, but we know of no prohibition of law against such purchase. The fact that the securities had a market value at which price they were authorized to be sold removes the possibility of defrauding the estate by acquiring the securities at a price below market value. Brown as purchaser of these securities was in no sense acting as attorney for, the administrator, but in a contractual' relation with him and subject to alii rights arising by reason of that relationship and amenable to all obligations growing therefrom. It is our judgment that the Probate Judge should make some provision by supplemental entry similar to the order made when the stocks in the possession of Mrs. Grover C. Brown were impounded, namely, that they may be sold at the option of Brown and the proceeds thereof impounded in lieu of the stock sold.
We are satisfied, as we said in case No. 2979, that Brown is entitled to an adjudication in a properly constituted proceeding as to his ownership and right of possession of the stocks impounded. Some appropriate action should be instituted wherein he is made a party, to determine title to the impounded securities.
3. In taking said securities from the possession of the said Grover C. Brown, who at the time was a witness at the hearing on said exceptions, and impounding the same in the possession of the Judge of the said Probate Court.
This action was not erroneous as we have heretofore discussed.
4. In adjudging the said securities to be the property of the estate of the said Henry V. Butler, deceased, and not the property of Grover C. Brown.
This action constituted prejudicial error. j
5. In ordering and adjudging that the said Grover C. Brown deliver said
The first part of this assignment of error ending with the word “deceased” is well made. The action of the court as to the latter part of the assignment is not objectionable.
6. In adjudging that the said Lewis C. Freeman, as Administrator, as aforesaid, wrongfully and unlawfully transferred and delivered the said securities to Grover C. Brown and ordering and adjudging that the said Grover C. Brown was not the owner of said securities and had not acquired the same for value from Frederick Freeman, a broker.
Brown could not be bound by the action of this court in the particular challenged in this assignment. The Court could make such determination only as related to the right to surcharge the administrator.
7. In finding and adjudging that the Probate Court had any jurisdiction over the person of Grover C. Brown, or over said securities.
The action of the Court in asserting jurisdiction over the person of Grover C. Brown was erroneous. No error was committed in taking possession of the securities.
8. In adjudging that said securities constituted a trust and were assets of the estate of Henry V. Butler, deceased.
In so far as the court undertook to make determination which would bind Brown and fix title in the estate the action of the trial judge was erroneous.
9. In ordering and adjudging that the said Grover C. Brown had been guilty of fraud or collution in the acquisition of said securities or in the maladministration of said estate.
Same ruling as on assignment No. 8.
10. In adjudging that Grover C. Brown was not entitled to compensation as attorney for said administrator, particularly when that question was not in issue in said proceedings on said exceptions.
See discussion of this question in case No. 2979.
11. In adjudging that in the taking of said securities the Court acted within its jurisdiction and invaded no constitutional rights of the said Grover C. Brown.
We have heretofore passed upon this question under other assignments and hold that there was no prejudicial error in the action of the court.
12, 13, 14, 15, raise constitutional questions which in view of our action are not controlling of the rights of Brown and when the Court has accorded to Brown his rights as we have herein adjudicated them, no constitutional right of his will have been violated.
16. For other errors apparent upon the face of the record.
We find no other errors on the record.
Judgment reversed and caused remanded in accordance with this decision.