Gatch v. Simpson

66 P. 688 | Or. | 1901

Mr. Chibe' Justice Bean,

after stating the facts, delivered the opinion of the court.

1. It is first contended that the petitioner had no authority to institute this proceeding. At common law the authority of an administrator de bonis non extended to only such- of the estate of the deceased as remained unadministered or unconverted by his predecessor. He could not maintain an action to recover converted assets, but that- right belonged to the heirs, legatees, creditors, or others interested in the estate: 2 Woerner, Administration (2 ed.), § 536; Bradshaw v. Commonwealth, 3 J. J. Marsh, 632. But, as Mr. Woerner points out, the historical justification of this rule, however valid in England, does not exist in this country, and therefore many of the states have discarded the rule itself, either by judicial authority or by statutory enactments. And this is true in this state. The statute provides that whenever all the executors or administrators die, resign, or are removed, administration of the estate remaining unadministered shall be granted to those next entitled, if they be competent and qualified; and that the new administrator “is entitled to the exclusive administration of the estate, and for that purpose may maintain any necessary and proper action, suit, or proceeding on account thereof, against the executor or administrator ceasing to act, or against his sureties or representatives”: Hill’s Ann. Laws, §§ 1098, 1099. The plain purpose of these provisions is that the assets of an estate shall always be in the hands and under the control of an acting executor or administrator, and subject, in the manner designated by law, to the jurisdiction and supervision of the county court. To this end it contemplates that when an executor or administrator dies, or is removed, all the property in his hands belonging to the estate shall pass to his successor, and such successor is given, power and authority to maintain all proper actions, suits, or proceedings to secure the possession thereof. Assets which have been converted into money are none the less still unadministered within the meaning of the law, and an administrator de bonis non may under the statute proceed against the former administrator or his sureties to recover the amount thereof. This seems to be the general trend of the authorities in this country, independently of statute. See 2 Woerner, Administration (2 ed.), § 352. But we are not without direct judicial authority on the question in hand. The statute of Kansas (Gen. St. 1889, § 2810) is substantially the same as ours, and the supreme court of that state held that it gives a substituted administrator the right to maintain an action against his predecessor as well as against the sureties upon his bond, to recover the converted assets: Davis v. Clark, 58 Kan. 454 (49 Pac. 665). In Iowa the statute is not nearly so explicit as ours, but simply provides that in case of a vacancy in the administration letters may be granted to some person, and that such substitution shall cause no delay in the administration of the estate (McClain’s Ann. St.- §§ 2348, 2349), and it was held that these provisions, so changed and modified the common-law rule that an administrator de bonis non could sue on the bond of a former administrator to recover the proceeds of property belonging to the estate and converted by him: Stewart v. Phenice, 65 Iowa, 475 (22 N. W. 636). The objection that the petitioner has no authority to institute this proceeding is therefore, in our opinion, without merit.

It is next urged that the court was without jurisdiction, because the petition does not allege that Shaw’s administrator had in his possession any property belonging to the Herren estate; but no relief is asked against him, except that he file in the county court such vouchers and papers belonging to the Herren estate as may be in his possession, and, besides, it is not clear upon what ground the sureties on Shaw’s bond, who alone appeal, can urge this question.

2. Again, it is contended that the county court is without jurisdiction to compel the sureties of a deceased administrator to make final settlement of the accounts of their principal. It has been held by this court in Adams v. Petrain, 11 Or. 304 (3 Pac. 163), that no action or proceeding can be maintained upon the bond of an administrator or executor until final settlement of his accounts. Such settlement, therefore, is a prerequisite to an action by the petitioner to recover from the sureties the fund in Shaw’s hands at the time of his death belonging to the Herren estate. Now, a settlement by the administrator de bonis non would manifestly not be binding on the sureties. As to them it would be res inter alios acta. Nor can Shaw’s administrator be compelled to make the final settlement: Cross v. Baskett, 17 Or. 84 (21 Pac. 47). The sureties of an executor or administrator, in the absence of fraud or collusion, are bound by the judgments or decrees against their principal in the course of administration (Bellinger v. Thompson, 26 Or. 320 (37 Pac. 714, 40 Pac. 229); but they are not bound by acts done by the personal representatives or successors of their principal, for whose fidelity they have not promised to answer. No judicial ascertainment of the liability of an administrator after his death can be binding upon his sureties unless they are parties to the proceeding. In some jurisdictions it is held that the remedy in such cases is by a bill in equity against the sureties for an accounting: Bush v. Lindsey, 44 Cal. 121; Chaquette v. Ortet, 60 Cal. 594; Curtiss v. Curtiss, 65 Cal. 572 (4 Pac. 578); Martin v. Ellerbe’s Administrator, 70 Ala. 326. These cases, however, are put upon the ground that the statutes did not confer authority upon the probate court to take and settle the accounts, and therefore relief must be had in a court possessing general equity powers. The constitution of this state provides that “the county court shall have the .jurisdiction pertaining to probate courts”: Const. Or. Art. YII, § 12. And the statute defining its jurisdiction declares: “The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is,— (1) To take proof of wills; (2) to grant and revoke letters testamentary of administration and of guardianship; (3) to direct and control the conduct and settle the accounts of executors, administrators, and guardians,” etc.: Hill’s Ann. Laws, § 895. The mode of proceeding in the county court, when sitting for the transaction of probate business, is in the nature of a suit in equity, and its jurisdiction of the parties is obtained by a citation (Hill’s Ann. Laws, § 1078); and its orders or decrees for the payment of money may be enforced by execution in the same manner as similar orders or decrees in the circuit court (Hill’s Ann. Laws, § 1082). These several statutory provisions not only confer upon the county court ample power and authority to settle and adjust the accounts of a deceased administrator, bnt manifestly require that proceedings for that purpose shall be instituted in that court: Davis v. Eastman, 66 Vt. 651 (30 Atl. 1).

This is, in effect, the construction given to the statute in Clark’s Heirs v. Ellis, 9 Or. 128, where it is held that a proceeding to contest the validity of a will and to revoke letters testamentary was properly commenced in the county court, and in Adams v. Petrain, 11 Or. 304 (3 Pac. 163), holding that no action can be maintained on an administrator’s bond until after a final settlement of his accounts in the county court. In the latter case it is said: “In the case before us the account of the administrator was not settled in the county court. The circuit court undertook to discharge that duty, and the judgment which the respondent obtained in the action is based upon the settlement of accounts had in the circuit eoux*t. Was the settlement of this account a matter pertaining to the jurisdiction óf a court of probate % It cannot be denied, and, besides, the statute quoted from expressly enumerates such settlements as within the jurisdiction belonging to a court of probate; and, if it is a subject of probate jurisdiction, which is undeniable, then it is within the exclusive jurisdiction of the county court, and the action of the circuit court was xxnwarranted. ’ ’ An adjudication against the administrator upon a citation to him will be binding upon his sureties, without notice to them. But if he die, leaving the estate unsettled, his sureties must be made parties to the proceeding, and citation issue to them, or the decree will not be binding upon them, or even evidence against them. We are agreed, therefore, that the demurrer to the petition was properly overrixled. .

3. The remaining question is as to the amount which should be charged against Shaw on final settlement, and in that regard the findings of the court below must be affirmed. Shaw’s semiannual account of April 26, 1894, which was approved by the county court, showed a balance in his handh at that time of $2,481.49, and this account and the findings of the court furnish at least prima facie evidence against the sureties: Bellinger v. Thompson, 26 Or. 320 (21 Pac. 47); Wilson v. Hinton, 63 Ark. 145 (38 S. W. 338); Irwin v. Backus, 25 Cal. 214 (85 Am. Dec. 125); Pundmann v. Schoenich, 144 Mo. 149 (45 S. W. 1112); School Dist. v. Hubbard, 110 Iowa, 58 (81 N. W. 241, 80 Am. St. Rep. 271). The burden of proof was therefore upon them to show that this fund has been properly administered. Upon the final settlement the court allowed for all disbursements shown by the testimony.

The decree of the court below is therefore affirmed.

Affirmed.