The petitioner in this proceeding for a writ of prohibition is an administrator who brought suit against H. S. Craig, his predecessor, to recover money allеged to have been embezzled from the estate of W. F. Gibbard, deceased. Certain money claimed to be due to Craig was garnished under a writ of attachment. Craig then moved to'‘vacate the attachment upon the ground that the action was prematurely brought. At the hearing of this motiоn the respondent judge stated that it would be granted. This proceeding was then brought in the District Court of Appeal, which denied the petitioner any rеlief. The ease is here upon an order granting a hearing in this court.
*529 According to the complaint, Craig was appointed executor in 1935. Hе continued to act in that capacity until December 4, 1939, when his letters testamentary were revoked.
The petitioner, who was later appointed administrator with the will annexed, declares that the superior court has no jurisdiction to discharge the attachment for the reasоn that it was issued in an action upon both an express and implied contract for the direct payment of money within the meaning of section 537, subdivisiоn 1, of the Code of Civil Procedure. Such an action, he asserts, may be brought at any time because section 612 of the Probate Code provides: “If any person embezzles, conceals, smuggles or fraudulently disposes of any property of a decedent he is chargeable therewith, and liable to an action by the executor or administrator of the estate for double the value of the property, to be recovered for the benefit of the estate.” The respondents take the position that the order which it is asserted is about to be made is one within the jurisdiction of the probate court and from which an appeal may be taken. For this reason, it is said, prohibition is not the proper remedy. Moreover, on the merits, they contend that the accounts of the former executor must be settled in the probate court before it can be determined what amount, if any, is chargeable against him, and an action brought in advance of that decision is premature.
It is elemеntary that prohibition may be resorted to only in cases where a court is acting in excess of jurisdiction and there is no other adequate remedy in the ordinary course of law. However, in the application of this rule, the term jurisdiction is now generally held to include for certain purposes the authority or power to act in a case in a particular way. Under the modern practice, the writ of prohibition may somеtimes issue to prevent the exercise of unauthorized power in a case where the court has jurisdiction of the parties and the subject-matter
(Rodman
v.
Superior Court,
13 Cal. (2d) 262 [89 Pac. (2d)
109]; Michel
v.
Williams,
13 Cal. App. (2d) 198 [
Upon the merits, the principal question for decision is whether the amended complaint states a cause of action in contract upon which an attaсhment may issue. By the first count of this pleading it is charged that the defendants converted property of the estate to their own use. Clearly this is a сause of action
ex delicto
and cannot be the basis for the issuance of a writ of attachment.
(San Francisco Iron etc. Co.
v.
Abraham,
In the second count of the amended complaint, it is charged that Craig received $95,000 for the use and benefit of the plaintiff and the heirs, legatees and devisees of the estate and that nо part of this sum has been paid except the sum of $17,000. By a third cause of action it is alleged that on May 16, 1939, Craig was indebted to the estate in the sum of $67,955.56 for money had and received, and that he executed a contract whereby he promised to pay the estate this amount. The fourth сount alleges that on July 15, 1939, Craig owed the estate $78,000 which he then promised to pay. The fifth cause of action repeats the allegations of the preceding one except that the date when Craig was indebted and promised to pay is said to be November 20, 1939. In the sixth count, plаintiff alleges mismanagement of the estate and appropriation of funds in an amount to be ascertained by an accounting.
It is conceded that the probate court has exclusive jurisdiction to settle the account of the former executor and an action to dеtermine the amount of his indebtedness in the form of an action for money had and received may not be maintained.
(Turney
v.
Shattuck,
At common law the authority of an administrator
de bonis non
did not extend to any property which had been administered by his рredecessor. A conversion of funds constituted an act of administration and the administrator
de bonis non
had no office to perform
(Reed
v.
Hume,
However, modern statutes have greatly enlarged the authority оf such administrators. (Woerner, The American Law of Administration, 3d ed., vol. 2, sec. 352, p. 1169. ) It is now the duty of the succeeding administrator to do everything necessary to completely administer the estate, and all the authority vested in his predecessor passes to him. This necessarily gives him power to сall the former representative to account for any money in his possession at the time of his removal because it is unadministered property. He may therefore sue his predecessor for mismanagement or any other breach of duty whereby the property of the deceased was diverted from the due course of administration.
(Herren’s Estate,
In the second, third, fourth and fifth counts of the complaint, the plaintiff is seeking to recover upon an implied contract to repay money allegedly converted by the former executor to his own use. The action is based upon specific transactions and the amount аsserted to be due is definitely stated. So far as these causes of action are concerned the action was not brought prematurely and will support a writ of attachment.
A peremptory writ of prohibition will issue as prayed.
Carter, J., Curtis, J., York, J., pro tem., and Moore, J., pro tem., concurred.
Rehearing denied.