Dennis Mckenney v. Mary Mcnearney

Appellant appealed from a district court order reversing an order of the Boundary County probate court requiring sale of certain real property belonging to the estate of Charles T. McNearney, deceased, in order ""to secure the just rights or interests of the creditors of said estate"" (I.C. § 15-712), including appellant, a creditor secured by a mortgage encumbering the realty. The trial court reversed the probate court order, after having found that appellant's claim had never been allowed or rejected by respondent administratrix nor reduced to judgment, and after having concluded that such probate court proceeding constituted an attempt to foreclose a mortgage in violation of I.C. § 6-101.[Footnote 1] Charles P. McNearney died August 4, 1956, leaving surviving his widow, Mary McNearney. The probate court of Boundary County appointed Mrs. McNearney and she qualified as administratrix of the estate. She gave prompt notice to creditors, the first publication being on January 10, 1957. She failed to file an inventory and appraisal although her petition for letters of administration reflected that the estate consisted of personalty, and an equity in certain real property.