Opinion
[Syllabus Material] [Syllabus Material] Rehearing Denied 28 Cal. 182 at 186.
Appeal from the District Court, Seventh Judicial District, Marin County.
The complaint averred that Timothy Murphy died in 1853, in Marin County, leaving a will, by which he appointed James Black and James Miller his executors, and that the will was probated; that in 1854 they qualified; that letters were issued to them, and they entered on the discharge of the duties of the trust, and continued to act until 1856, when they resigned, and their resignation was accepted by the Probate Court; that plaintiff was a nephew of deceased, and in 1858 was appointed by the Probate Court of Marin County administrator of the estate, and qualified, and letters were issued to him, and that he was still administrator.
The action was brought on a bond made by defendant Todd to the former executors, for money held by them belonging to the estate and loaned to Todd, and to foreclose a mortgage given to secure the bond.
Defendants first demurred, and after the demurrer had been overruled, answered. The answer denied that the former executors duly resigned or were discharged from their trust as executors, and also denied that letters were duly issued to plaintiff, or that he qualified, or that Black and Miller delivered the bond sued on to plaintiff, or that he was entitled to collect or receive the money due on the bond. The answer set up as new matter, that it appeared from the report of the executors that the bond was of the value of eight thousand dollars, and that when plaintiff was appointed no showing was made of the value of the bond, and that the administrator was required to give a bond in the sum of four thousand dollars only.
Plaintiff had judgment in the Court below, and defendants appealed.
COUNSEL:
The demurrer was well taken, and should have been sustained.
Black and Miller were never legally discharged from their office and trust as executors, and were, at the time of the attempt to grant letters to Lucas, the executors of the will, and the only persons entitled to the possession of the estate, and to administer it and execute the trusts of the will.
Section one hundred of the Probate Act (Wood's Dig. p. 400) authorizes an executor, by writing filed in the Probate Court, to resign his appointment, " provided he shall first settle his accountsand deliver up all the estate to such person as may be appointed by the Court."
It is very clear that before an executor can resign his trust, and before the Probate Court can accept the resignation, so as to relieve him from his duties and responsibilities as such executor, two things must plainly appear to have been done. First. A full settlement of the executor's accounts, showing the true condition of the estate, and how much and what part of it is unadministered. Second. That the Court has appointed some other person competent and qualified to receive the estate and finish the administration and execute the trusts. Without these the Court has no power or jurisdiction to discharge the executor, and any attempt to do so by the Probate Court would be void, and confer no power upon the appointee.
The complaint shows that the executors were discharged, if at all, in September, 1856. That discharge only appears as the result of the acceptance of the resignation on that day. The complaint does not show that they had rendered any account of their doings as such executors, or that any action was ever taken by the Probate Court as to their accounting; nor does it appear from thiscomplaint how much, if any, property was in the hands of the executors at the time they undertook to resign, or when Lucas claims to have been appointed. This is manifestly necessary; for after they are discharged, the Court has no further power over them.
S. F. & J. Reynolds, for Appellants.
Watkins & Wise, for Respondent.
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, 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 bonis 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.