61 P. 737 | Kan. | 1900
The opinion of the court was delivered by
Susan Grimes died testate February 6, 1890. The will was at once probated, and B. F. Hudson, who had been designated in the will as executor, was granted letters testamentary. He gave bond in the sum of $120,000 and entered upon the discharge of his duties. On May 3,1900, some of the heirs instituted an action to contest the will, and it was adjudged invalid by the district court July 2, 1891. Proceedings in error were begun in this court by the executor on July 13, 1891, when an order was made staying the execution of the judgment of the district court and all proceedings in the case in that court, and later the order was modified so that the executor might proceed to preserve and protect the property of the estate, but forbidding any further distribution of the same until the decision of the merits
The will which was probated and subsequently set aside provided for the disposition of the property by private or public sale, and directed how the proceeds should be distributed. While the executor was in control he collected from the personal estate more than $18,000, and also a considerable sum from the rentals of real estate. On February 11,1891, he filed his first annual report in the probate court, and continued to administer the estate as executor under the direction of the probate cqurt until the will was set aside. Under the order of the supreme court staying the judgment and proceedings in the district court he continued to act as executor of the estate, with no authority except to preserve and protect the property of the estate until the final decision of the cause in the supreme court. In September, 1891, after the judgment had been rendered setting aside the will, the executor divided the moneys in his hands belonging to the estate among the five non-contesting heirs, but gave nothing to those who were attacking the will.
After the appointment of the administrator, Hudson presented to the probate court what was termed a final settlement of his executorship, and asked to have the same considered and approved by the probate
“In cases of this kind, where the administrator is still acting and the estate is not settled, and the probate court has complete and ample jurisdiction over the administrator and over the estate, actions in other jurisdictions against the administrator and his sureties on the administrator’s bond should not be encouraged.”
The present action, like the one in the case cited, ‘ ‘ attempts to take a matter which properly and legitimately belongs to the jurisdiction of the probate court, and a matter which ought to be settled and determined in that court, and to place it within a jurisdiction which has no general control over the affairs of the estate.” It is true that the jurisdiction of the probate court in respect to estates is not absolutely exclusive, but the cases which may be wrested from the jurisdiction of the probate court and tried in the district court are special and limited.
Is there no adequate remedy in the probate court ? So far as an accounting and settlement with an executor or administrator is concerned, there appears to be no inadequacy of remedy, or necessity for appealing to an exceptional jurisdiction. The statute provides for an accounting in the probate court annually, and at other times, and as often as that court may require, until the final settlement is made. (Gen. Stat. 1897, ch. 107, § 149; Gen. Stat. 1899, § 2837.) The obligation of the bond which the executor gave required an accounting in that tribunal, and the statute makes specific provisions as to how an executor or administrator may be compelled to render his account; and it also provides for a final discharge of the executor after the accounting and settlement which shall exonerate him and his sureties from liability. (Gen. Stat. 1897, ch. 107, §§ 151-153 ; Gen. Stat. 1899, §§ 2839-2841; Ex. & Adm. Act., §§ 149-151.)
It is argued that the court had no authority to require an accounting by Hudson because he was no longer an executor, and further, that the statute does not provide for an accounting by a removed executor, or that the probate court may order him to turn over the assets of the estate to his successor. Hudson, we think, is to be treated as a removed executor. He held his position and administered the estate under the sanction and supervision of the probate court, but
The general trend of the authorities is that the revocation of letters or the resignation or removal of an executor does not affect the authority of the probate court to require an accounting'. So it has been held that where an executor or administrator resigns before the settlement of his accounts, and his resignation is accepted, the court does not thereby lose
“After revocation, removal or resignation, the former executor or administrator cannot complete a sale which he has been negotiating on behalf of the estate, nor collect assets, but the court has jurisdiction to settle his accounts as though he were still in office.”
In Schouler’s Executors and Administrators, section 520, it is said:
“The American rule of the present day is, therefore, with few exceptions, that the court of chancery, usually, has neither jurisdiction nor occasion to interfere in the settlement of the estate, and to order an accounting by an executor or administrator. And, even as to one who has resigned or been discharged from his trust, our law inclines to treat him as one whose accounts should be closed under probate direction, as in the case of one who has died in office.”
It is true that some of the decisions cited are based on statutes which expressly authorize an accounting with a former .executor or administrator, but the implication of our statute, as well as the power entrusted to our probate court, justifies the view which we have taken. Reference has been made in the argument to the cases of Ingram v. Maynard, 6 Tex. 130, and Francis v. Northcote, id. 185, which seem to hold to a contrary view, based apparently upon the provisions of the constitution and statutes of Texas, constituting the
It is not for the successor to decide what allowance shall be made to Hudson for the partial execution of the trust, or for expenses incurred while he acted in that capacity. The orderly and legal course is that a full accounting and settlement shall be made by the former executor in the court having jurisdiction and control,of the estate, and that the transfer of the assets and funds remaining in his possession shall be made to the successor under the direction and supervision of that court. The taking of the matter from the jurisdiction of the probate court cannot be sustained on the ground of circumlocution or a multiplicity of suits.
We conclude that there was no occasion to interfere in the settlement of the estate in the probate court, and that until the settlement was had by the tribunal appointed for that purpose an action on the executor’s bond could not be maintained.
The judgment of the district court will therefore be reversed and the cause remanded for further proceedings.