18 Colo. App. 23 | Colo. Ct. App. | 1902
It appears from the stipulation of facts on which this cause was tried in the district court, that one L. A. Melburn dying, the administratrix of his estate, Mrs. Melburn, his widow, was ordered by the county
It is true the general rule is as declared by the authorities that it is not permissible for an executor or an administrator to engage in trade with the assets of the estate, or carry on the business of the decedent unless expressly so directed by the will, or authorized by the court which has charge of the administration of the estate. If he does, he must himself personally bear all expenses incurred, and all losses, and account for all profits. He must answer for the full value of the assets. The rule, however, is not without exceptions, as for instance where it is necessary in a mercantile business or in a manufactory, temporarily, not for the purpose primarily of making profit upon sales as in the ordinary course of busi-... ness, but in order to dispose of and realize upon the assets of the business to the best advantage. — Merritt v. Merritt, 62 Mo. 151. Where he continues the business under such circumstances, it is not regarded in law as the carrying on of the trade or business, but simply as the winding-up of the affairs. In such cases the purchase of some goods may be necessary
In this case the administratrix acted under the express order of the county court. The order is not set forth in the record, so that we are unable to determine from it whether the court exercised its discretionary power wisely or improvidently. The presumption must be in favor of the former, there being nothing to show the contrary. The mere fact that the administratrix continued the business for the term of three years- is not sufficient to justify us in concluding that the business was not being run simply for the purpose of winding it up, and disposing of the entire stock. We must presume the contrary, otherwise the court under whose direction it was being done would have caused it to have been stopped. In this state county courts, in matters of probate business relating to the settlement of the estates of deceased persons, are invested with extensive and unlimited original jurisdiction, legal and equitable, and with large discretionary powers. The power to regulate and control settlement of such estates is expressly conferred, upon them. — Constitution, art. 6, sec. 23; Mills’ Ann. Stats., sec. 1095, 1097, 1107; Lusk v. Kershow, 17 Colo. 486; People, etc., v. County Court, 3 Colo. App. 428; Clemes v. Fox, 25 Colo. 45.
From the necessities of the case, neither the legislature nor the constitutional convention - could anticipate every business contingency which might
Counsel take the broad position, however, that expenses such as this in question can be presented for allowance only in the report of the administrator; that he contracts them, and is primarily liable therefor ; that such claims as under the statute are allowable against the estate, can be only those claims which were debts against the decedent at the time of his death. In support of this we are cited to Lusk v. Patterson, 2 Colo. App. 310. It must be confessed that counsel therein find some support for their position, if some broad expressions used in the opinion in that ease are to be accepted as a statement of the law in all cases. It must be remembered, however, as a fundamental rule, that all utterances of a court must be interpreted by and in connection with the facts to which they are applied. In that case the claim in question was of an attorney at law for services rendered to and under employment by the administratrix alone, without any authority from or order of the court. The claimant there had assisted the administratrix in the discharge of a personal duty devolving upon her because of the fact that she was administratrix. Here the liability was incurred by the administratrix by the express order and direction of the court. She was, as she was compelled to do, rendering obedience to the express mandate of-the court. The expense was incurred in the doing of something not within the general scope of the power of the administratrix as such — something which independent of this order, the administratrix would have had no authority to have done, and could not have done, except at her own risk and expense. It