98 Minn. 151 | Minn. | 1906
Action upon administrator’s bond to recover the amount claimed to have been converted by a former administrator of the estate.
The complaint states that May 24, 1901, defendant Kratka was the duly appointed and acting administrator of the estate, and as such executed his bond, with the other defendants as sureties, conditioned upon the faithful execution of the trust reposed in the administrator. The condition of the obligation was that the administrator
Shall administer according to law all the goods, chattels, rights, credits, and estate of said deceased which shall at any time come to his possession or to the possession of any other person for him, and out of the same shall pay and discharge all debts and charges chargeable on the same, or such dividends thereon as shall be ordered and decreed by said court, and shall render a just and true account of his administration to said court within one year, and at any other time when required by said court, and shall perform all orders and decrees of said court by him to be performed in the premises.
The complaint was demurred to by defendant Kratka upon the ground that the court has no jurisdiction of the subject-matter of the action; that it appears from the complaint that several causes of action are improperly united; and that the complaint does not state facts sufficient to constitute a cause’ of action. Demurrer was also interposed by the other defendants upon the ground that plaintiff had no legal capacity to sue and that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrers.
The principal ground urged in support of the demurrers is that it does not appear upon the face of the complaint that there was default in the conditions of the bond, and that the district court did not acquire jurisdiction of the subject-matter for the reason that the amount of the administrator’s liability had in no manner been determined by the probate court, relying upon Betcher v. Betcher, 83 Minn. 215, 86 N. W. 1, and other cases.
In Huntsman v. Hooper, 32 Minn. 163, 20 N. W. 127, it was held
Betcher v. Betcher, supra, was an action brought in the district court by an administrator de bonis non to compel an accounting against a preceding1 executor of the estate, and it was held that the probate court had jurisdiction to call the delinquent to an accounting and that the district court was without jurisdiction in the premises. No accounting had ever been made, no bond was involved in the action, and there was no reason why the district court should assume jurisdiction.
In Balch v. Hooper, 32 Minn. 158, 20 N. W. 124, it was held that an administrator de bonis non was entitled to bring a suit upon his predecessor’s bond without a previous order or decree of the court directing such predecessor to pay over the balance due. The acts upon which plaintiff relies to constitute a default in the bond are that the administrator was removed and that he failed to pay over the proceeds in his hands to plaintiff, his successor, although due demand was made, and, further, that he failed to dispose of the estate and pay the debts of the deceased within the sixty days allowed by the court.
We have been somewhat impressed with the suggestion that the amount of Kratka’s liability ought to be determined by the probate court upon an adjustment of his final account before the sureties are required to respond in an action on the bond; but according to the complaint the principal was expressly ordered by the probate court to close the estate, and has had ample opportunity so to do, and the sureties cannot be relieved from the default of their principal provided the conditions of the bond have been violated.
Orders reversed.