51 Cal. 435 | Cal. | 1876
The title to all the real estate in controversy was in Merced Avila de Arnaz, the testatrix, at the time of her death, and by her last will and testament she devised and bequeathed all her property to her children in equal shares'. The will of the testatrix has been admitted to probate; letters testamentary have issued to the husband of the testatrix, and the estate remains unsettled in the probate court. So far as the real estate is concerned, there was no ground upon which an action in the district court to declare a trust could be maintained, for the title to the same had already vested in those plaintiffs and defendants who are the children of the testatrix, by virtue of the will. The personal property belonging to the estate of the testatrix, whether it be such as the testatrix owned at the time of her death, or is the proceeds of other property of the estate sold by the executor, is subject to the control of the Probate Court, except so far as it may have been exempted therefrom, by the provisions of the will; and the court has competent authority to make all necessary orders to compel an account of such j>roperty, and to cause a distribution to be made among those entitled thereto. That court also possesses competent power to compel an accounting in respect to property, which, it is alleged, the executor has converted to his own use.
It may be conceded that the District Courts have jurisdiction of actions against executors and administrators to declare and enforce trusts, in respect to real estate in many cases, and that actions may be brought in those courts, in respect to certain controversies having their origin in the administration of the estates of deceased persons (see Haverstick v. Trudell, ante, p. 431); but the Probate Courts have
By the terms of the will very enlarged powers were conferred upon the executor. He was vested with “ complete power” to dispose of the property of the estate “as to him shall seem best for the benefit of our children, and without responsibility.” A further clause of the will is as follows: ‘ ‘ I declare that it is my desire that no tribunal of this State, nor of any other, intermeddle in any manner, in regard to my properties, as I have in my husband the most unlimited confidence; * * * the interest which I have in said properties my said husband shall determine.” How far a court can control the executor in the exercise of the powers and discretion thus conferred, it is unnecessary in this case to determine; but if he is subject to control in these respects, or if he is wasting the estate, or is about so to do, there is nothing in the complaint showing that the Probate Court in the exercise of the powers conferred upon it, is unable to afford the proper remedies to the parties interested.
The demurrer to the complaint should have been sustained, on the ground of the want of jurisdiction in the District Court.
Judgment reversed, and cause remanded with directions to sustain the demurrer to the complaint.
Mr. Chief Justice Wallace did not express an opinion.
