Den v. Luton

THE COURT. This is an appeal from an order appointing Alfonso L. Den and Ysabella Den McDonald administrators with the will annexed of the estate of Nicholas A. Den, deceased, in the place and stead of administrator Richard 0. Hyland, resigned, and dismissing the contest thereto instituted by the appellant, Carrie Bell Luton.

The decedent died in 1861 leaving practically all of the real and personal property owned by him to Jose Maria Hill and Charles E. Huse, as trustees, to be partitioned and administered by them as such trustees. A decree of final distribution was entered in 1875. The decree of distribution purported to distribute “any other property not now known or discovered which may belong to the estate, or in which the estate may have any interest ... in accordance with the terms of the will”, but failed to name any devisee or legatee to take any such undiscovered property. In fact, the language just quoted is qualified by the expression “as follows”, after which two specific parcels of land are distributed to the trustees already mentioned. It may be added parenthetically that nowhere in the will is there a true residuary clause, and it is, to say the least, extremely doubtful if any interest in undescribed realty could have passed thereunder.

In 1921, according to the record, A. M. Ruiz petitioned for and was granted letters of administration with the will annexed for the purpose of administering on some property which it was alleged belonged to the estate, but which could only be determined by a court action. Subsequently Ruiz died and in 1930 Richard C. Hyland was appointed administrator with the will annexed to succeed him. In his petition Hyland alleged that there was property belonging to the estate which was unadministered, being the same property as described in the former petition of Ruiz. The court determined that the deceased left the property mentioned in the petition and that the estate was “unadministered and [640]not closed”. The record does not show that there was any opposition to the petition of Ruiz or Hyland. In March, 1933, Hyland’s resignation as administrator was filed. At the same time Alfonso L. Den, a son of the decedent, and Ysabella Den McDonald, a granddaughter, petitioned for letters with the will annexed to succeed Hyland. It was to this petition that the contestant, Carrie Bell Luton, another granddaughter, filed opposition on the ground that the property -in question passed under the decree of distribution in 1875 and that there was no necessity for administering it.