Lucas v. Todd

28 Cal. 182 | Cal. | 1865

Lead Opinion

By the Court,

Sawyer, J.

More than a year elapsed after the entry of the judgment appealed from before the appeal was taken. The appeal from the judgment,, therefore, was not in time.

On the appeal from the order denying a new trial, the appellant relies, substantially, upon the insufficiency of the evidence to show that Lucas is the administrator of Murphy. The question is raised in various forms, as upon rulings of the Court admitting portions of proceedings in the Probate Court, and as to the effect of the evidence when admitted, but the substantial question is, as to the sufficiency of the evidence to sustain that issue.

Letters testamentary had been issued to James Miller and James Black upon the same estate. Miller filed his resignation September 13, 1856, and Black his, August 26, 1856. The resignation of the former was formally accepted by an order to that effect entered by the Probate Court, September 22,1856, and of the latter, August 27,' 1856. Both the resignations and the orders of acceptance are in proper form. It is insisted, however, that these orders are void, because it does not appear that the executors had settled their accounts, and delivered up all the estate to some person appointed by the Court. It does not appear that they had not performed these acts, and it is not shown that the entire proceedings of the Probate Court are in evidence. The Probate Court had jurisdiction of the subject matter, and even conceding that the proceeding can be collaterally questioned, it is not to be presumed that the orders accepting the resignations of the executors were improperly made. All intendments must be in favor of the action of the Court, the same as in other Courts of record. (Wood’s Dig. 912; Irwin v. Scriber, 18 Cal. 503.) But there is in the record a decree of final settlement of the accounts of Miller and Black as executors, entered July 30, 1856, in which it is adjudged that the debts of the estate and expenses of the administration have all been paid, and the property all distributed, except the bond and mortgage now in suit, and that there is a considerable sum due the executors for over payments. And there is other testimony that, on the resignation of the executors, Black delivered the bond and mortgage and all other papers to the Probate Court, and it is now found in the possession of plaintiff.

The petition of plaintiff for letters of administration de bonis non states all the jurisdictional facts and gave the Court jurisdiction of the case. The duty of ascertaining the value of the property of the estate, and fixing the amount of the administrator’s bonds with reference thereto, is devolved upon the Probate Court, and we must presume that the Court discharged that duty properly, at least till the contrary is shown. We have no evidence that the value of the bond and mortgage in suit was more than half the amount of the bond fixed by the Probate Court. It may have been worthless. It is at least doubtful whether we can collaterally review the action of the Probate Court in this respect. The amount and value of the estate are not jurisdictional facts. We think the evidence shows that the plaintiff is the administrator de bonis non of Murphy, and as such entitled to maintain the action.

Judgment affirmed.

By the Court,

---

Rehearing

Sawyer, J.,

on petition for rehearing.

The complaint is sufficient. We supposed our opinion was sufficiently indicated on this point in discussing, substantially, the same questions raised by counsel on the rulings made upon the trial.

The petition of Lucas for letters states, that the applicant is a nephew of the deceased, and a nephew is one of the persons entitled to letters. There may be others having preference, and if so, on application of a nephew for letters, the persons entitled to be preferred may appear, under section sixty-one of the Probate Act, and contest the application or assert their own rights on that ground. Even other persons, “ not entitled,” may be “ competent,” and letters may be granted to such person on “ the request of the person entitled.” “ The request shall be in writing and shall be filed in the Court.” (Sec. 66.) The Act does not say that the request shall be stated in the petition. It would be well to state in the petition all the facts upon which petitioner relies to entitle him to letters in preference to other parties. But we think the petition of Lucas states “ all the facts essential to give the Court jurisdiction of the case.”

It is unnecessary to determine, whether the Probate Court was the proper custodian of the bond from the time of the acceptance of the resignation of the former executors till the appointment of plaintiff, or not.

The resignations of the executors respectively were accepted by the Court, and there is nothing to affirmatively show that these proceedings are invalid. When Lucas was appointed administrator de honis non, he became entitled, as such administrator, to the possession of the assets of the estate, wherever they might be, and he has obtained possession'—no matter from whom—of the instrument in suit. He is now the proper custodian, and entitled to maintain this action.

This is not an appeal from an order, or judgment of the Probate Court, and it is not our province to collaterally determine in this case whether the Probate Court erred in ascertaining the value of the estate and fixing the amount of the administrator’s bond. The Probate Court had jurisdiction of the subject matter, and it determined the question of the value of the property and fixed the amount of the administrator’s bond upon the evidence before it. If the Court erred, its action must be reviewed in some other mode.

Rehearing denied.