32 Minn. 158 | Minn. | 1884
Defendant Hooper, administrator, with the will annexed, of the estate of D. A. Huntsman, filed his account in the probate court of Scott county, accompanied by his petition, setting forth that, from ill-health and advanced age, he felt himself unfit longer to serve, and praying that his account be allowed and settled, and that he be allowed to resign his trust, and that some suitable person be appointed to succeed Mm. The court made an order fixing a time and place for hearing this petition, of which due notice was given. Upon .the hearing the court made its decision in writing, in which, after stating the method of accounting adopted by it, and giving, in the form of an exhibit, (B,) a statement of moneys received and disbursed by the administrator, according to the computation adopted, which showed a balance of $10,247.80 in cash due from him to the estate, he added: “The result of this computation appears in Exhibit B, also annexed hereto and made part of this order, and the account of said administrator is hereby settled and adjusted, as shown by said exhibit,the final balance in his hands being $10,247.80.” Also: “The prayer of the administrator for leave to resign has not been contested, and sufficient reasons have been shown to the court why it should be granted. His resignation is hereby accepted.” Subsequently the court appointed the plaintiff administrator de bonis non, who, having qualified, demanded of his predecessor payment of four-fifths of this balance of $10,247.80, it being assumed that one of the legatees under the will, who had come of age, was entitled to receive the other one-fifth. Payment having been refused, plaintiff, having first obtained permission from the probate j udge, brought this action on the administration bond to recover the amount.
1. The first point made is that Hooper and not plaintiff is still administrator; that an acceptance of a resignation does not amount to a removal, and even if a resignation tendered with sufficient reasons would authorize the court to remove, it could only be done by order or judgment duly entered. Rumrill v. First Nat. Bank, 28 Minn. 202,
2. This balance was not money which Hooper had received in specie as assets of the estate, but the proceeds of assets which he had converted into money. And it is claimed that an administrator de bonis non, as such, is entitled to receive and administer such estate only as remains in specie; that when the former representative has converted assets into money, and what is called an “administration” has taken place, so that only the value can be recovered, the administrator de bonis non cannot maintain an action, the distributees or creditors being the only parties who would have this right. This was the old rule, at least where the former executor died in office. But
3. Must the action on the bond to recover this balance be brought in the name of the probate judge, or may it be brought, by permission of such judge, in the name of the administrator de bonis non? If the money, when recovered, is to go into his hands to be administered, there would seem to be no good reason, in the nature of things, why the latter course might not be permitted. Gen. St. 1878, c. 55, § 1, provides that all bonds required by law to be taken in or by order of the probate court, or judge of probate, in case of any breach of the conditions thereof, may be prosecuted in the name and for the benefit of any person interested therein, whenever the judge of probate directs. Section 6 of this chapter refers to actions by persons other than the probate judge. O’Gorman v. Lindeke, 26 Minn. 93. An administrator de bonis non is a party “interested in the estate,” and a person “aggrieved” if his predecessor fails on demand to pay over the balance in his hands due the estate. The fact that he is the party into whose hands the money is to go to be administered is conclusive on this point. Wiggin v. Swett, supra. We therefore conclude that this action was properly brought under section 6.
4. No previous order of the probate court requiring Hooper to pay over this balance was necessary. If the action had been brought by a creditor under section 3, or by the next of kin under section 4, such an order would have been essential. Wood v. Myrick, 16 Minn. 447, (494;) Waterman v. Millard, 22 Minn. 261. But we find nothing in the statutes requiring any order or decree directing an outgoing administrator to pay over the balance in his hands to his successor. Our statute undoubtedly contemplates and requires an order of distribution and payment before an administrator or executor can be deemed in default for not paying creditors, legatees, and next of kin. The reason for this is apparent. Payment to these is paying money out
5. There is no force in the suggestion that the failure of the probate court to appoint guardians ad litem for the infant legatees is fatal to the validity and conclusiveness of the judgment upon accounting. The statute does not require this. Gen. St. 1878, c. 54, § 14, and c. 59, § 47.
The reasoning of the opinion in the case of the Mousseau Will, 30 Minn. 202, is equally in point here. And, if this judgment or accounting was valid, we do not understand that its conclusiveness against the sureties is seriously controverted. See Brandt on Surety-ship, § 496.
Judgment affirmed.
Dickinson, J., because of illness, took no part in this decision.