87 P. 245 | Cal. Ct. App. | 1906
Lead Opinion
Action upon an administrator's bond. Judgment for plaintiff for a lesser amount than claimed in the complaint. Plaintiff appeals from the order denying a new trial.
It is made to appear in the record that one Graves was appointed administrator of the estate of Elizalde on the twentieth day of January, 1894, and executed a bond at the date of such appointment, and certain subsequent bonds, as required by the order of the court; that on May 28, 1898, said administrator filed his second annual account, which was duly allowed, from which it appears that on said date he held in his possession $5,133.50 belonging to said estate; that the administrator died July 15, 1900, without rendering any further account; that after the filing of his said account the administrator received $562 in addition. Upon a trial of this action, the court below found the administrator had received, and was chargeable with $5,696, and credited him *116 with certain payments not disputed, together with other payments the subject of controversy upon this appeal — one of $940 advanced to the widow as part of her distributive share, and $550 for expenses and attorney's fees to one Leme, and for expenses and extraordinary services of the administrator.
Appellant's contention is that these credits last mentioned were not proper matters to be credited by the court in this action, and no credit therefor should be allowed at the instance of the sureties. With this we agree. In so far as the advance to the widow is concerned, it was not even proper subject of the final account. (Estate of Willey,
Further objection is made by appellant to the refusal of the court to charge the administrator with the inventoried amount of a note of one Dargie. The court found that there was no negligence upon the part of the administrator in his failure to realize upon this asset. "It is true that when an administrator receives a note, and the maker thereof is solvent, but afterward becomes insolvent, the burden of proof is on him to show that with due diligence he could not have collected it." (In re Moore,
We find no other errors in the record.
The order is reversed and cause remanded for further proceedings.
Gray, P. J., concurred.
Concurrence Opinion
I concur in the order of reversal, and also in much of the reasoning of the opinion of Mr. Justice Allen. But the reversal should, I think, be placed on *118
the broader principle, established by the decisions of the supreme court, that a suit cannot be maintained against the sureties on an administrator's bond until there has been a settlement of his account, either in the probate proceedings under section 1629 of the Code of Civil Procedure, or by a bill in equity brought for that purpose. (Graff v. Mesmer,
In such a bill brought against the administrator the sureties may, perhaps, be joined (Chaquette v. Ortet, supra); and I can see no objection to this course. But in the present case the administratrix of the deceased Graves was not made a party; and, indeed, the demand of the defendants by proper supplemental pleadings to bring her in as a defendant was denied by the court.
This error may be cured by a proper order requiring her to be brought in as a defendant (Code Civ. Proc., sec. 389); but the question will still remain whether the court will then have jurisdiction of the case. This question, under the existing constitution and some of the older authorities, is not altogether clear. Generally speaking, the matter of accounts of administrators, like other matters of probate jurisdiction, belongs exclusively to the probate court. (Hope v. Jones,
I would have no difficulty, therefore, were the question a new one, in thus construing the provisions of the section. But under the old law there was a similar provision with reference to the probate court (Probate Act, sec. 229); and it was held, in effect, that the probate court did not have such authority, and that the account of a deceased administrator could be settled only by a suit in the district court sitting as a court of equity (Bush v. Lindsey,
I assume, therefore, upon the authority of the decisions cited, that it is within the power of the court in the administration of an estate to adopt as the mode of procedure the form of a bill in equity; and to this no objection can be urged when the suit, as in this case, is in the court charged with the administration of the estate; but in such case, the equity suit must be regarded as merely ancillary to the administration and as a part of the proceedings therein. The court will, *120
therefore, in the present case, upon making the proper parties, have as full jurisdiction to pass on all the questions presented to it as it would have in an ordinary proceeding in the matter of the estate. It will, therefore, not only have jurisdiction of the several questions relating to allowances for extraordinary services, etc., but also to the alleged payment of $940 to Mrs. Victoria Elizalde, who for this purpose should be made a party — as was demanded by the defendants in the case below. As to this, the action of the court should be in conformity with the course pursued in the matter of theEstate of Moore,