Summary
rejecting an assertion that an interim order, determining the character of property — as community or separate — in a decedent's estate, was appealable before a decree of distribution was entered.
Summary of this case from Matter of Estate of SpencerOpinion
No. 5290.
October 24, 1929.
APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C.J. Taylor, Judge.
Judgment directing distribution in favor of plaintiff. Affirmed.
Wm. P. Hemminger, for Appellant.
It is the contention of the appellant that the appeal was from the order directing the distribution, which order was entered on May 31, 1927, and not from the decree of distribution, even though the decree of distribution is also denominated "an order." Over three months and a half elapsed from the entry of the order and the filing of the notice of appeal and the statute provides that the notice of appeal shall be filed and served within sixty days after the order is entered.
"The right of appeal in probate matters from the probate to the district court is of purely statutory regulation, and, where the right of appeal is challenged, the authority for such appeal must be found in the statute and can only be taken from the judgments, orders, decrees and proceedings enumerated by the statute." ( In re Coryell's Estate, 16 Idaho 201, 101 Pac. 723.)
Otto E. McCutcheon, for Respondent.
No precedent is found in the jurisprudence of Idaho for the making of the order of the probate court of date May 26, 1927. Perhaps it was an interlocutory order or perhaps it was an opinion, but certainly it was nothing from which an appeal might have been taken.
The statute declares what shall be included in a decree of distribution. (C. S., secs. 7729, 7730.)
The command of the statute that the decree "must name the persons and the proportions or parts to which each shall be entitled" is mandatory. ( In re Crook's Estate, 125 Cal. 59, 58 Pac. 89; In re Estate of Kennedy, 129 Cal. 384, 62 P. 64.)
The code allows an appeal from a decree of distribution. (C. S., sec. 7173; 1927 Sess. Laws, chap. 68, p. 84, par. 7.)
Hilda Skinner, widow and administratrix of the estate of R.R. Skinner, deceased, filed her final account and petition for distribution in the probate court of Jefferson county. Objections to said petitions were filed by E.G. Skinner and Sarah Skinner, deceased's father and mother, who claimed that certain of the estate consisted of separate property in which as heirs they were entitled to share. Hearing was had, and on May 31, 1927, the probate judge filed an order declaring a part of the estate to be community property and the remainder the separate property of the deceased. A decree of distribution in consonance therewith was made and entered August 30th following; and the widow, in the meantime having remarried, appealed both as administratrix and in her own right. Motion was made upon statutory grounds to dismiss both appeals. The appeal as administratrix was dismissed, but the motion to dismiss the individual appeal was denied.
Trial de novo resulted in a judgment in the then appellant's favor; and from such judgment the then respondent, Sarah Skinner, has appealed. She first complains that the court erred in denying her motion to dismiss her adversary's appeal, insisting that it was not perfected within the statutory time. The appeal was taken September 15, 1927, from the decree of August 30th. Appellant contends that the appeal should have been taken from the order of May 31st, declaring the nature of the property. Such so-called "order" was not appealable. (C. S., sec. 7173; amd. chap. 68, Laws 1927.)
At the trial on March 6th, appellant's counsel sought to introduce in evidence certified copies of certain deeds, without proffering excuse for failure to produce the originals or the official records thereof. Such copies being by the court rejected, counsel moved for a continuance to enable him to take the deposition of appellant at Clarence, Missouri, showing that she did not have possession of the originals. At the time, counsel stated in open court that, should his motion be denied, he would have "no further testimony to offer." Both sides were given until March 10 to make showings and counter showings. On that day, the court after considering the respective showings made, denied the motion.
Relying upon counsel's statement that he would have no further proof, the court had advised respondent to return to her home at Dillon, Montana. But, his motion denied, counsel announced his desire to proceed: whereupon, the court imposed as terms certain payments approximating $213, and fixed trial day for March 16th at Rigby, Idaho. On that day counsel informed the court that his client had refused to comply with the terms imposed. The court thereupon gave judgment as aforesaid. Appellant contends that the court erred in not granting the continuance denied on March 10th. A review of the showings made discloses no abuse of discretion. Two other specifications of error have to do with the alleged arbitrary imposition of terms and their exorbitance. Suffice it to say: It does not appear, nor does appellant contend that by reason of the directed payments her cause was in any manner prejudiced. She made no payments; and the judgment appealed from mentioned them not at all. Finally, it is urged that "the Court erred in rendering judgment in favor of the appellant," doubtless referring to respondent. Many a time and oft, this specification has been declared by this court to be insufficient. ( Keltner v. Bundy, 40 Idaho 402, 233 P. 516.)
Judgment affirmed, costs to respondent.
Budge, C.J., and Givens, Wm. E. Lee and Varian, JJ., concur.
Petition for rehearing denied.