145 Minn. 161 | Minn. | 1920
Appeal from an order sustaining a demurrer to the complaint on two of the grounds specified therein, the first that the court had no jurisdiction of the subject of the action, and the second, that several causes of action were improperly united. The facts stated are briefly as follows:
Plaintiff, a married woman, is defendant’s sister, and reposed special confidence in him because of their relationship. Her husband died September 15, 1896, leaving her with a minor child. On her application, defendant was appointed and qualified as administrator of her husband’s estate. Thereafter she conveyed to him a house and lot owned by her in her own right and occupied as her homestead. He agreed to take charge of the property for 'her and to reconvey it when requested to do so. He collected the rents and finally sold the property without her knowledge. It was mortgaged for $500. He sold it for a sum in excess of $1,600. Plaintiff had received $1,000 upon a certificate of life insurance her husband had taken out for her benefit. She gave the money to defendant to be used in discharging the mortgage on her real estate. He agreed to keep the remainder for her and repay it as she needed it. In July, 1897, as administrator of her husband’s estate, defendant became possessed of the portion of her husband’s personal property to which a widow is entitled as her statutory allowance. It was of the. appraised value of $497. He has never accounted to her for any of the property or money thus received, but from time to time has paid her small sums, not exceeding $600 in all. In July, 1917, when her child became of age, she asked for an accounting, but did not get it. In April, 1918, she discovered that defendant had sold her real estate, and immediately brought this action for an accounting.
'The demurrer was on four grounds: Want of jurisdiction; want of legal capacity to sue; the improper joinder of several causes of action, and the failure to state a cause of action. 'It was sustained on the first and third grounds with leave to amend.
The complaint does not state the amount of the estate left by plaintiff’s husband, nor her selection under G. S. 1913, §§ 7243, 7307, of the personal property referred to, nor the making by the probate court of the order required by G. S. 1913, § 7308. Nothing was said in Sammons v. Higbie’s Estate, 103 Minn. 448, 115 N. W. 265, to warrant plaintiff’s contention that a widow may sue the administrator of her husband’s estate to recover from him, individually, the value of the share in the personal property left by her husband which she is entitled to select as her statutory allowance. Surely, in no event, should such an action be allowed, when it appeal’s that there has been no compliance with the statute relating to such selection and the defendant is still acting as administrator and* in his representative capacity, is in the possession of all the decedent’s personal estate. The probate court is the only court which has jurisdiction. The'rights of the widow can be amply protected in that court, and an administrator, derelict in the fulfilment of his- trust, can there be speedily brought to account. The probate court controls the property through the administrator. He is subject to its orders only, and it has abundant power to compel his obedience. State v. Ueland, 30 Minn. 277, 15 N. W. 245; Wiswell v. Wiswell, 35 Minn. 371, 29 N. W. 166; In re Scheffer’s Estate, 58 Minn. 29, 59 N. W. 956; Boltz v. Schutz, 61 Minn. 444, 64 N. W. 48; Starkey v. Sweeney, 71 Minn. 241,
In amending her complaint, plaintiff may eliminate her claim against defendant as administrator, if so advised. With that out of the complaint, the pleading would not be demurrable on either of the two grounds upon which the demurrer was sustained.
We are not called upon to decide and express no opinion upon the question of whether a cause of action is stated in the complaint. The order appealed from is affirmed. ,
