11 Colo. App. 505 | Colo. Ct. App. | 1898
delivered the opinion of the court.
This was a suit in equity, originally instituted in the district court by John C. Marshall as plaintiff against Mary Marshall, administratrix of the estate of James Y. Marshall, deceased, the East Denver Savings Bank, and H. E. Pack, as defendants. Plaintiff and the decedent were brothers. The complaint alleges that about May, 1888, the plaintiff removed from Leadville, Colorado, to the republic of Mexico for the purpose of taking charge of a ranch therein belonging to his brother, the decedent, and that he there remained in
The first question presented, and one upon which the administratrix mainly relies to secure a reversal, is the contention on her part that the district court was without jurisdiction; that it being shown upon the face of the complaint itself and the pleadings that the subject-matter of the controversy pertained to the settlement of the estate of a decedent, the county court of Arapahoe county, from which letters of administration issued, and in which administration was then pending, had exclusive jurisdiction. The constitution provides, article 6, section 11, that district courts shall have original jurisdiction of all causes, both at law and in equity, and. such appellate jurisdiction as may be conferred by law. Article 6,, section 23, provides that county courts “ shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians, conservators and administrators, and settlement of their accounts, and such other civil and criminal jurisdiction as may be conferred by law.” It will be observed at the outset that the county court is not given exclusive jurisdiction even in matters of probate. People ex rel., etc., v. Barton, 16 Colo. 78. It is well settled that county courts sitting for the transaction of probate business, are courts of limited jurisdiction. They have no other powers than those given by the constitution and the statute, and such incidental powers as pertain to them for the purpose-of enabling them to exercise the jurisdiction conferred. It is true that it is declared by the constitution to be a court of original jurisdiction so far as probate business is concerned, yet in the exercise of its powers, its jurisdiction is limited and special. People v. Loomis, 96 Ill. 377; Buckley v. Supe
It is insisted with great earnestness that the plaintiff in this case could recover, if at all, only the identical stock belonging to him, and for which certificates were issued to the decedent, and that if he failed to find or identify this particular stock, then no relief could be granted to him in this form of action, and he must make claim against the estate the same as any other creditor for what might be coming to him. We cannot agree with this contention. Counsel fail to make the distinction between shares of stock and certificates for shares. A share of stock is simply an undivided interest in the capital stock of a company. It is that which is subject to ownership, and one share is identical with and indistinguishable from any other of the same series. The certificate is not the subject of ownership, but is simply an evidence of ownership. Upon the same principle, a bailee or pledgee of property, although ordinarily required to return the same identical property intrusted to him, is not so obligated where the property consists of shares of stock in a corporation represented by certificates. His obligations are fulfilled if he returns certificates for an equal number of
It may be said, therefore, with reference to certificates of stock, as has been said concerning the mingling of trust with private moneys: “ The value being the same, and it being a matter of the most perfect indifference whether parties get the same or other coin, so they get the sum to which each is entitled, there can result no injury to either. Common sense will not discuss the question of identity when nothing useful can result from its determination.” Gunter v. Janes, 9 Cal. 659.
Another reason why the rule contended for by counsel is not applicable and cannot be sustained, is that a trustee cannot by his own voluntary act change his capacity and convert himself into a mere debtor. Gunter v. Janes, supra. If this be true, upon analogy, reason and principle, the death of the trustee could not effect the change. If this were the case, and the estate of the decedent should be insolvent, as is shown in the case at bar, the party in whose favor a trust
These views and conclusions are not in conflict with the doctrine laid down in McClure, etc., v. La Plata County, 19 Colo. 127. The two cases are clearly distinguishable. The objects and purposes of the suits as well as the facts are radically and essentially different and distinct. In that case, it was sought to subject the private estate of a defaulting trustee to the payment of a trust fund that had been by him wrongfully converted, and the court said that while it was not necessary to trace such fund into any particular property, it must first be clearly shown that it went into and was used for the benefit of the estate, before the relief could be granted. In this case, it is sought to establish and enforce a trust in certain property which was alleged to be the identical property intrusted to the trustee. If in the case above cited, the trust fund converted by the trustee had been money, and it had been sought to subject money in the possession of the decedent at the time of his death to the payment of the trust fund, the difficulty encountered in the case would have been entirely obviated. The court certainly would not have held that before the relief prayed for could have been granted, it was first necessary to have been shown that the money converted by the trustee, the identical bills and coin, was found in the money left by the trustee at his death. We have held that there is no more necessity for identification of shares of stock held by a trustee than there is for money intrusted to him.
It is also insisted by the defendant that the laches of plaintiff constitute a bar to this action, and even though the statute of limitations should be held not to apply, yet these laches of plaintiff should have great force with the court in its decision. The particular acts or omission of plaintiff upon which defendant relies to constitute a bar are not pointed out.
The plaintiff was not charged with the duty of ascertaining, upon his temporary return to the state in 1892, whether or not the trustee was properly using or holding possession of the trust property, nor upon the facts as disclosed by the evidence was he from that time chargeable with notice that prior thereto the trustee had converted the property to his own use, if such were the case. The trust relationship having been once established, was in the absence of evidence tending to show the contrary presumed to continue. There was nothing shown sufficient to raise a presumption even that the relation had been repudiated or discontinued in 1892, nor at any time up to the death of the trustee, and this suit was instituted within one year after that death. As the trust relationship appears to have continued to exist up to the death of the trustee, laches of the plaintiff, if any prior thereto could not
These embrace the material assignments of error discussed and relied upon by defendant. Error is predicated upon the admission by the court of certain testimony, but it is not referred to in the briefs of counsel. An examination of the objections does not disclose sufficient merit in them to justify a reversal of the judgment. They were mainly based upon the admission of numerous exhibits. We see no error in their admission, and think they were entirely competent under the issues.
There is sufficient evidence to support the judgment of the court, and it will therefore be affirmed.
Affirmed.