Appeal from Third Judicial District Court, Lander County; Peter Breen, Judge.
Milton B. Badt, for Appellants.
Chas. B. Henderson and Carey Van Fleet, for Respondent.
By the Court, McCarran, C. J.:
An administrator was appointed on the 26th day of February, 1908, to take charge of and administer the estate of Patrick H. Delaney, deceased. On December 8, 1908, an inventory and appraisement was filed which set forth the property of the estate and the appraised values as follows:
Certificate of deposit, Horton Banking Company............... $5,000.00
Cash in bank, Horton Banking Company......................... 1,200.00
Cash received from coroner................................... 6.10
Four lots in Battle Mountain, Nevada......................... 118.00
One cabin, 12x14............................................. 250.00
Four mining claims in Battle Mountain mining district, known as Delaware No. 1, No. 2, No. 3, and No. 4............................... 500.00
One iron bed, springs, and mattress.......................... 12.00
Two comforters and two pillows............................... 4.00
One camp stove............................................... 3.00
Cooking utensils, three pieces............................... 1.00
A total of................................................... $7,094.10
It appears that from December, 1908, until July 1, 1915, no accounting was ever made by the administrator as to the estate or its condition. On the last-named date, pursuant to a citation duly issued by the district court, a first and final account was rendered. In this first and final accounting it appears that the administrator charges himself with cash received $6,224.45, and credits
himself with cash paid out in the total sum of $4,370.94. Of the $6,224.45 with which the administrator charges himself, $6,200.45 was in the nature of certificates of deposit and cash at the time at which the administration commenced. The sum of $24 appears to have been received in the form of rental for the cabin. In addition to this, the administrator testified at the hearing that he had on hand $100 received as additional rental for this cabin.
Objection was raised in the district court to the several items of cash paid out by the administrator from the moneys of the estate. It is from the court's rulings on these objections that appeal is taken to this court.
In the first and final accounting there appear the items of cash paid out as follows:
Nov. 7, 1908To George W. Tripplett, assessment work on four mining claims ...... $400
Dec., 1909To George W. Tripplett, assessment work on four mining claims.. 400
Nov., 1910To George W. Tripplett, assessment work on four mining claims.. 400
Dec., 1911To George W. Tripplett, assessment work on four mining claims.. 400
making a total of $1,600 appearing as paid out by the administrator from the moneys of the estate for assessment work on the Delaware claims for the years 1908, 1909, 1910 and 1911.
It is admitted by the administrator, and in this the record is conclusive, that no order of court was ever applied for, nor was any order made or entered, authorizing, allowing, requiring, or directing the expenditure of these several sums prior to their expenditure. It is the contention of respondent that inasmuch as the four mining claims known as the Delaware No. 1, No. 2, No. 3, and No. 4 were the property of the deceased Delaney, in order to hold these mining claims for the estate it was necessary to perform the annual assessment work thereon. From the testimony of the administrator it is disclosed that after the year 1911 no assessment work was performed on these claims. In
other words they were abandoned. In justification for the performance of the assessment work and the expenditure of the moneys of the estate on these mining claims, the administrator relates of the existence of other mining property in the immediate vicinity which, being worked and developed by other parties, gave promise of presenting mineral deposits of great value; that inasmuch as the Delaney group was contiguous to this other mining property, he, as administrator, believed that the Delaney group should be protected by the performance of the annual assessment work, and thereby held for the estate. It is disclosed that no work was performed on the Delaware group after the year 1911, because development on the contiguous mining property had ceased and nothing of value had been disclosed.
Nothing appears in the record by way of justification or excuse for the failure of the administrator to secure an order of the district court allowing or directing the expenditure of these several sums of money. He was appointed administrator on the 26th day of February, 1908, and according to his own statement, as appears in the first and final accounting, the first expenditure of money for the assessment work was in December of that year. The inventory and appraisement disclosing the existence of the mining claims known as the Delaware No. 1, No. 2, No. 3, and No. 4 belonging to the estate of Patrick Delaney had been made long prior to the date on which the first expenditure for assessment work was made by the administrator. The existence of the Delaware group of mining claims as property belonging to the estate of the deceased was known to the administrator prior to the death of the deceased. We make reference to these facts because we are forced to the conclusion that there was ample time and opportunity for the administrator to have presented the matter to the district court, the properly constituted authority, and to have received from that court an order directing the expenditure of such money as it deemed necessary
for the preservation of the mining claims to the estate. And another fact appears quite significanti.e., even though it might have been reasonably necessary that the assessment work for the year 1908 should be performed upon the mining claims in order to hold them for the estate, later expenditures under the administration appear to us to have been entirely unnecessary and unwarranted, inasmuch as the condition of the estate, as disclosed by the final accounting, was such as would have warranted its being closed and the residue properly distributed to the parties entitled, long prior to the time at which it became necessary to perform the assessment work of 1909.
Aside from three claims of minor importance, amounting in the aggregate to $306.19, the estate was practically free from indebtedness. Aside from the group of mining claims and a small piece of realty in the town of Battle Mountain, and a few items of minor personal property, the estate consisted entirely of cash represented by the certificates of deposit for $5,000 and the open account of $1,200 in the Horton Banking Company in the town of Battle Mountain.
It is the contention of respondent here that good faith on the part of the administrator is all that is necessary to warrant the allowance of these several items, and that it was the duty of the administrator to see to it that the assessment work on this group of claims belonging to the estate was performed each succeeding year in order to hold the property for the estate. The learned counsel for the respondent, by way of argument in his brief, puts the matter thus:
But what would have been said, and what bitter attack would have been made, if these claims had been abandoned by the administrator at the time he took possession of the property and Senator Kearns had been doing the assessment work on these claims alongside of the claims possessed by the estate?
In furtherance of the contention of respondent, we are referred to a number of decisions rendered by this court dealing with matters of somewhat similar import,
and inasmuch as these decisions support the position which we take here, we deem it proper to review the same at some length. In the Matter of the Estate of Marco Millenovich, 5 Nev. 161, this court had occasion to pass upon the acts of an administrator where objection had been filed to his paying out certain sums of money to meet assessment levied upon mining stock belonging to the estate. At the very outset of the opinion of the court, speaking ...