O'Rourke v. Harper, 89 P. 65

O'Rourke v. Harper

89 P. 65 | Mont. | 1907

MB. JUSTICE SMITH

delivered the opinion of the court.

The allegations of the amended complaint in this case are substantially as follows: That John S. Wisner was twice elected public administrator of Deer Lodge county. His first term was *349from January, 1903, to January, 1905, and his second from January, 1905, to the time of his death in 1906. The sureties on his official bond for the first term were T. C. Davidson and M. J. Fitzpatrick, and those for the second term were the respondents here, W. W. Harper and J. P. Stagg. During his first term he was, by virtue of his office as public administrator, appointed administrator of the estate of Thos. Ford, deceased. He continued to act as administrator of this estate until his death. As administrator of said estate he received, during his first term as public administrator, a considerable sum of money belonging to said estate, and after the beginning of his second term as public administrator he received, as administrator of the Ford estate, the sum of $3,848.20.

Plaintiff has a claim against the Ford estate, which was duly presented and allowed prior to the first term of Wisner as public administrator. The administrator had on hand sufficient funds belonging to the Ford estate to pay this claim. He did not pay said moneys to the county treasurer, but converted the same to his own use; such conversion taking place during his second term as public administrator and after the defendants, Harper and Stagg, had become his sureties. The plaintiff’s claim not having been paid, he brought this action against the sureties on Wisner’s second official bond, and the question presented here is: Are said sureties liable for the default of Wisner in the matter of an estate instructed to his care during his first term as public administrator, although such default occurred during his second term? The district court sustained -a general demurrer to the amended complaint and entered judgment for the defendant sureties. The appeal is from that judgment

Section 4511 of the Political Code reads as follows: “When-, ever a public administrator takes charge of an estate, under order of the court, he must, with all convenient dispatch, procure letters of administration thereon, in like manner and on like proceedings as letters of administration are issued to other persons. His official bond and oath are in lieu of the adminis*350trator’s bond and oath, but when real estate is ordered to be sold, another bond must be required by the court.” This statute is plain: A public administrator must procure letters of administration like any other applicant. He is not ex officio administrator of any estate. (In re Pingree’s Estate, 100 Cal. 78, 34 Pac. 521.) In Re Craigie’s Estate, 24 Mont. 37, 60 Pac. 495, this court said: “The expiration of [his] term in the office of public administrator did not prevent him thereafter from administering Craigie’s estate. He, and not his successor as public administrator, was entitled to the administrations pending when he went out of office. The administration of an estate commenced by a public administrator, and not completed when his term of office expired, is nevertheless to be completed by him, and does not devolve on his successor.” To the same effect are the cases of Rogers v. Hoberlein, 11 Cal. 120, Estate of Aveline, 53 Cal. 259, and Olsen’s Admr. v. Rich, 79 Ky. 244.

It seems clear, therefore, that Wisner’s authority to administer upon the Ford estate was derived solely from the grant of letters issued to him during his first term of office as public administrator. The fact that he afterward succeeded himself as public administrator has nothing to do with this controversy, and may be treated as though it did not exist. It is equally clear, under the authorities, that Wisner continued to be administrator of the Ford estate after the expiration of his first term as public administrator. It naturally follows that the sureties on his second official bond are not liable for his acts or omissions as administrator of any estate of which he became the representative before they executed their undertaking.

The judgment of the district court of Deer Lodge county is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.