Gow v. Cascade Silver Mines & Mills Co.

MR. COMMISSIONER BENNETT

prepared the opinion for the court.

Plaintiff and appellant commenced this action in the district court for Silver Bow county seeking to enjoin the defendants from doing certain acts contemplated by a resolution adopted at a meeting of the stockholders of the Cascade Silver Mines & Mills Co., a corporation. The corporation, its directors, and its secretary and treasurer, were made joint defendants and are the respondents. The action was instituted by a minority stockholder of the defendant corpora-, tion. It is based upon the contention that the action of the stockholders’ meeting was invalid for the reason that there were not present a sufficient number of the shares of stock of the corporation to act upon the propositions to be, and which were, considered. There were two propositions advanced in the complaint in support of this contention. ¥e are, however, concerned with but one of them. That one is that, of the total number present and voting, a certain number of shares were represented and voted by D. J. O’Connor, the special administrator of the estate of Charles D. McLure, deceased. It,is alleged in the complaint that “the said D. J. O’Connor as such special administrator was not authorized in his capacity as such special administrator or otherwise, or at all, to vote” the stock of the estate. It is also alleged that the amount of the stock that was voted by the special administrator was sufficient so that without it the action of the meeting was invalid. Issue was joined, the cause tried by the court sitting without a jury, findings of fact and conclusions *492 of law were made, and judgment was entered in favor of the defendants. Plaintiff appealed and brings before us a record consisting of pleadings, minute orders, a bill of exceptions not including the testimony taken, requested findings,, the court’s findings of fact and conclusions of law, and the judgment appealed from. No testimony is before us.

There are several specifications of error relied on. In answer the respondents assert several propositions of law. We have considered all the questions and have concluded that ,the only one which requires notice is whether or not on the ¡record before us we can say that the court erred in entering 'the judgment of dismissal. While appellant’s argument apI peals to us with much force, we are constrained to conclude ¡that the judgment should be affirmed.

The only question which we will discuss is whether or not I [1] the special administrator had the authority to vote the (stock of the deceased, Charles D. McLure. This issue was i before the trial court under the pleadings, and since the ¡evidence is not before us, we are concluded by the presumption that the court correctly found in favor of the defendants. (See Boe v. Hawes, 28 Mont. 201 , 72 Pac. 509 .)

j Appellant contends that the act of the special administra [2] tor in voting the stock was void. In support of this contention, he relies upon the decisions of this court holding that the powers of a special administrator are limited to the performance of acts which are necessary for the collection and preservation of the estates of a decedent. That rule has been announced many times by this court, the most recent statement being found in the ease of In re Williams’ Estate, 55 Mont. 63 , 1 A. L. R. 1639, 173 Pac. 790 . The cases cited, however, do not establish a-rule which precludes a special administrator from voting stock belonging to the estate.

In the pleadings in the case, the findings of fact, and the [3-5] argument of counsel, much space is devoted to a determination of the question as to whether or not the act of *493 the special administrator in voting the stock was done in furtherance of his power and duty to preserve the estate. In our opinion the determination of that question was one which was within the probate jurisdiction of the district court alone. No other issue being presented by the pleadings, a court of equity was without jurisdiction to enjoin the defendants unless it can be said that in no event can such power be granted to a special administrator. If the authority cannot be granted under our statutes, then the plaintiff herein was entitled to the relief demanded. However, if there is any situation under which such authority can be granted to a special administrator, it is exclusively within the probate jurisdiction of the court to adjudicate as to the necessity. Whenever the court so sitting shall determine whether or not such power shall exist, its order is conclusive as against a collateral attack.

Again calling attention to the fact that the testimony is not before us and that we have ‘no means of ascertaining just what extraordinary powers might have been conferred on this special administrator, we are left to determine the question of whether authority can possibly be granted to vote stock.

Plaintiff cites the provisions of section 5947 of the Revised Codes of 1921, which reads: “The shares of stock of an estate of a minor, or person of unsound, mind, may be represented by his guardian, and of a deceased person by his executor or administrator.” He asserts that under the rule, “Eapressio unius est exclusio alterius,” the conclusion is compelled that special administrators have no authority to vote the stock of deceased persons. We cannot agree with this conclusion. If a court within its probate jurisdiction may, under any conceivable state of circumstances, authorize such action, then the word “administrator” as used in that section is sufficiently comprehensive to permit it.

As was said in effect in the case of In re Williams, supra, ordinarily we do not look beyond the express terms of the *494 statutes to determine the extent of the powers of special administrators. If we were limited to the powers specifically enumerated, in all probability we would be compelled to conclude that stock voting was not among them. There is, however, the provision in section 10111, Revised Codes of 1921, which in defining the duties of such an administrator to act, enumerating the powers and duties, says that he may “exercise such other powers as are conferred upon him by his appointment.” As was said in State ex rel. Bartlett v. District Court, 18 Mont. 485 , 46 Pac. 261 , that provision “is but a further power to do what may be’ necessary to collect and preserve.” “The additional powers are only such as are incident to those designated, or in line with them.” (In re Welch’s Estate, 106 Cal. 427 , 39 Pac. 806 .)

Nevertheless, it is apparent that contingencies may arise which will authorize the court sitting in probate under the quoted provision of section 10111, supra, to direct a special administrator to do things which are not specifically enumerated in the statute. For example, a decedent may leave a building in such a condition that it is badly in need of repair. A special administrator may, upon proper application, be authorized to make such repairs. (See In re Moore’s Estate, 88 Cal. 1 , 25 Pac. 915 .) If he were limited to the powers expressly mentioned, he could only take possession, “preserve from damage, waste and injury,” leaving it to the general administrator to make the repairs.

We are of the opinion, therefore, that conditions may arise where in order to preserve the value of stock, and thus to preserve the value of an estate, a court, in the exercise of its probate jurisdiction, may authorize a special administrator to participate in a meeting of the stockholders of a corporation, stock in which was owned by a decedent at the time of his death, as one of his necessary incidental powers. Among the instances might be one where the existence of a thriving corporation which could be lawfully extended would expire between the time of the death of the owner of a majority of *495 its stock, and before an executor or general administrator could be appointed. Certainly, in sucb case, the “fair import” of tbe terms of our statutes would permit the court to authorize a special administrator to act or “preserve the estate for the executor or administrator.”

Rehearing denied April 11, 1923.

That it is not alone the specific property which is to be preserved, but the value as well, is shown by the provision for the sale by a special administrator of perishable property.

By the adoption of section 5947, supra, the legislature must have had in mind that the value of an estate could in instances be preserved by permitting stock belonging to it to be voted.

In -the case at bar the only question which the court could determine was whether the extraordinary power of voting the stock had been conferred upon the special administrator. The question of the authority having been properly before the trial court, in the absence from the record of the evidence we must presume that a sufficient showing was made, and a finding will be implied that by an order duly given and made by the court having jurisdiction, the special administrator was authorized to vote the stock of Charles D. McLure at the stockholders’ meeting in question. We cannot say that the trial court erred in entering judgment for defendants.

We recommend that the judgment be affirmed.

Per Curiam:

For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

Affirmed.