Summary
recognizing similar authority for probate courts in California
Summary of this case from Jones v. Friedman (In re Jones)Opinion
[Syllabus Material] Appeal from the District Court of the Third Judicial District, County of Alameda.
On the trial of this cause the Court below excluded an important witness for plaintiff on the objection of defendant to his competency. The plaintiff then moved the Court to discharge the jury, which the Court refused.
The plaintiff then moved the Court for leave to suffer a nonsuit, which was granted, and the jury discharged; whereupon the plaintiff moved the Court for a new trial, which was denied, and plaintiff appealed.
COUNSEL
Baker and Wistar, for Appellant.
L. M. Crane, for Respondent.
The appellant having submitted to or taken a nonsuit against himself on his motion, cannot sustain an appeal upon the judgment thereon rendered.
It would be taking an appeal from his own act. (5 Blackford's Rep. 168; 6 Id. 555; Evans v. Phillips, 4 Wheaton, 73.)
JUDGES: The opinion of the Court was delivered by Mr. Justice Terry. Mr. Justice Heydenfeldt concurred.
OPINION
TERRY, Judge
This case comes up on an appeal from the judgment of the Probate Court of San Francisco. The errors assigned are:
1. The removal of the appellant from the administration of the estate.
2. The refusal of the Court below to transfer to the District Court for trial, certain issues of fact which had already been tried and decided by the Probate Court.
3. Rejecting on the final settlement of the administrator's accounts certain sums paid on claims against the estate, which had been duly allowed by the administrator and Probate Judge.
1. The Probate Judge, as the general supervisor and guardian of the estates of deceased persons, has power, by law, to suspend or remove an administrator " whenever he has reason to believe, either from his own knowledge or from credible information, that such administrator has fraudulently wasted or mismanaged the estate, or is about to do so, or has become incompetent to manage it." (C. L. 418, Secs. 281, 283.)
With the exercise of this power, so necessary to the protection and security of estates, an appellate Court should not interfere, unless it be clearly shown that there has been a gross abuse of discretion by the Probate Court. The facts of this case, as disclosed by the record, establish no such abuse of discretion.
2. So much of the Act of ___, 1855, as provides for the transfer to the District Court of issues of fact already decided in the Probate Court, is unconstitutional and void. As the power to try de novo issues, which have been tried and decided, necessarily includes the power to reverse or modify such decisions, the effect of the Act would be indirectly to confer appellate jurisdiction, which, under our Constitution, the District Courts cannot exercise.
3. By our probate law, claims against an estate which have been allowed by the administrator and the Probate Judge, have the force and effect of judgments. (C. L. 395, Secs. 132 to 141.) At common law, an administrator who paid a claim without suit, did so at his peril. The evident design of our law was, by protecting the administrator in the payment of such claims as were duly presented and allowed, to prevent the property of estates from being squandered in useless and expensive litigation. (1 How. Miss. 119; 3 Id. 216 and 303.)
This rule applies only to such claims as were debts against the deceased, and not to the expenses incurred or disbursement made by the administrator in his management of the estate, which latter claims are conclusive only after having been allowed by the Probate Court upon settlement of the account, after notice to the parties interested.
It follows that the Court erred in rejecting the items for sums paid to physicians for attendance upon the deceased.
Judgment reversed, and cause remanded.