In re Estate of Painter
Before: Temple
Synopsis
Estates of Deceased Persons — Petition for Partial Distribution — Showing Required — Condition of Estate — Title of Applicant— Opposition — Rebuttal— Plea in Abatement—Improper Practice. Upon the hearing of a petition for a partial distribution of the estate of a deceased person, no default can be taken, and a plenary showing must - be made by the applicant at the hearing, whether there be opposition or not, that the estate is but little indebted, that the applicant is entitled to the share asked for, and what, when the expenses are paid, such share will amount to, and the only office of an opposition is to rebut this showing, and there can be no plea in abatement as such; nor is it proper practice to allow the parties appearing in opposition first to offer evidence showing the pendency of legal proceedings to determine the rights of the applicant in the estate, and of an action to settle partnership accounts of the decedent, and to deny the petition on that ground, ■without any evidence from the petitioner; but the showing made by the petitioner must be considered with the evidence offered by the contestants, as to whether the condition of the estate warrants a partial distribution to the applicant.
Id.—Duty of Judge—Caution—Safety of Distribution—Discretion.— The probate judge should proceed with great caution, and very much must be left to his discretion in determining whether a partial distribution can be safely made, and when he decides that the condition of the estate is such that a distribution cannot be safely made, his conclusion will not often be reversed in the appellate court.
Id.—Determining Rights of Applicant — Deferring Distribution— Action under Code — Election of Judge. — The court may determine the rights of the applicant to a share of the estate, and, if so, to what share, upon the hearing of the petition for partial distribution, as being necessarily involved therein, or, if the judge sees fit, he may elect to defer the distribution, and direct suit to be brought under section 1664 to determine the extent of the applicant’s interest; hut the judge should either elect to suspend the proceedings and direct such suit to be brought, or should proceed to determine, upon the whole evidence, whether the application should be granted or denied.
Id.—Bond upon Partial Distribution—Payment of Creditors—Sufficiency of Assets.—The creditors are not to be deprived of their lien upon the assets of the estate, and given a bond in lieu thereof; and the court should see that there are sufficient assets left to pay the creditors, without recourse to the bond given upon partial distribution, the requirement of a bond being only additional security to provide against unforeseen liabilities and errors in judgments.
Temple, J. This is an application for a partial distribution, made by the widow and children of deceased. J. B. Painter died testate, having by his will made many bequests and devises. Among other things, he gave to his brothers, J. Milton Painter and Theodore P. Painter, his interest in the partnership of Painter & Co., of which firm he had been a member, and also devised to them a certain building in which the business of the firm had been conducted. There were several minor children, one of whom was born after the execution of the will. The widow and the children then in being received bequests and devises by the will, as did also several other persons. The widow claims that all the property of the estate is community property, and that she is entitled to one-half thereof as surviving wife, and also to the bequests made to her in the will. Naturally, [638]J. M. Painter and Theodore P. Painter deny that the widow is entitled to one-half the property, and claim that she cannot take under the will, and still claim her rights as survivor, because the testator evidently attempted, by his will, to dispose of his entire estate. The widow states in her petition that, to properly express her interest in the estate, it must be divided into five hundred and four parts; that she is entitled to two hundred and fifty-tw.o parts of it for her interest in the community property, one hundred and fourteen parts as devisee under the will, and to nineteen parts as assignee of Arthur Painter, a devisee under the will; making three hundred and eighty-five of said five hundred and four parts constituting the estate.
J. Milton Painter and Theodore P. Painter oppose the application. They were brothers of the testator, and to them is given, in terms in the will, the interest of the testator in the partnership property, and also a specific piece of real estate. They are, therefore, interested in the question raised by the application. They set up, in substance: 1. That the right of the widow to one-half of the property as community property is not beyond question, and that an action had been brought, and was then pending, to determine the claim of the widow to take both under the will and one-half of the community property as survivor; and 2. That an action is also pending between the surviving partners of the firm of Painter & Co. and the estate to settle the accounts of the copartnership, and to close up its business. In that suit the surviving partners contend that the deceased was indebted to the copartnership in a large sum.
At the hearing the petitioner offered no evidence whatever, but counsel agreed that the parties who appeared in opposition might first offer evidence showing the pendency of the legal proceedings alluded to in their written opposition, and submit to the court the sufficiency of such evidence to cause a denial of the petition and application for partial distribution.
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