3 Alaska 121 | D. Alaska | 1906
This matter arises on demurrers to the complaint by two of the defendants, J. M. Decker and B. M. Behrends. Plaintiff sues, not as an individual, but as the heir of E. O. Decker, deceased. The action is
The administrator of a partnership business, like the administrator of an individual estate, is appointed and acts under the authority granted by, and is subject in all matters pertaining to the administration to, the direction and control of the probate court. Code Civ. Proc. § 792. Hence the provision of the Code and the rules of law applicable to a general administrator are controlling in the case of the partnership administrator. Over the general administrator, the commissioner, as ex officio probate judge, has, in the first instance, the exclusive jurisdiction. The.language of section 763, Code Civ. Proc.:
“The commissioners appointed in pursuance of this act and other laws of the United States have jurisdiction within their respective precincts, subject to the supervision of the district judge, in all testamentary and probate matters”
—is somewhat different from the Oregon statute (section 895, Hill’s Ann. Code), upon which the defendants rely. That section provides that:
“The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate.”
The matters over which jurisdiction is given are enumerated in identical language in each Code. But does the different
An action upon the administrator’s bond, in which it is sought to recover for alleged misconduct of, or misappropriation of property by, the administrator, will not lie until the
“His removal does not relieve him of his obligation to render such an account (i. e., final), and we perceive no difference between tbe procedure in such a case and any other where a final accounting and settlement are proper. * * * When the accounts of the removed administrator or executor have been settled, and the balance due from him ascertained and decreed by the county court, his failure or refusal to pay the amount adjudged to he due from him, or the property still unadministered in his hands, to his successor in office, in accordance with the decree of the county court, would warrant bringing the necessary and proper action provided for by section 1067. No suit in circuit court under any other circumstances could be deemed necessary or proper in view of the exclusive jurisdiction of the county court in probate matters.”
This case is followed and supported by other well-considered decisions in Oregon, among which are Steel v. Holiday, 20 Or. 76, 25 Pac. 69, 10 L. R. A. 670, and Herren’s Estate, 40 Or. 90, 66 Pac. 688. See, also, Beall v. New Mexico, 16 Wall. 539, 21 L. Ed. 292. The above cases are much stronger than
The demurrers should be sustained.