account filed by the personal representative makes a prima facie showing that there are no assets of the estate to be distributed, and there is no proof to the contrary, he will not be ordered by the court to file a statement of distribution.53 And a personal representative may be relieved from the duty to account by the consent of all interested parties.54 § 1577. Where Burden of Accounting and Liability Rests upon the Death, Resignation or Removal of Personal Representative. The appointment of a personal representative by the probate court and his acceptance of the office gives such court not only jurisdiction of the assets of the estate, but also of the person of the representative until after his accounts have been settled and he has been discharged. The jurisdiction of the court to compel the representative to account does not terminate because of his removal from office and the appointment of a successor.55 Nor can the representative relieve himself of the duty to account by resigning from office.56 And although the appointment of the debts and legacies of his testator, it is no defense that the executor is ready and willing to appropriate for the payment of legacies such assets of the estate as are in his possession.-Probate Court of Central Falls v. Adams, 27 R. I. 97, 8 Ann. Cas. 1028, 60 Atl. 769. 53 Succession of Watterston, 19 La. Ann. 104. 54 In re Dimmick's Estate, 111 La. 655, 35 So. 801; State v. Stuart, 74 Mo. App. 182; Matter of Douglas, 60 App. Div. (N. Y.) 64, 69 N. Y. Supp. 687; Meyer's Estate, 13 Pa. Dist. Rep. 191, 30 Pa. Co. Ct. 84; Tielinghast v. Brown University, 25 R. I. 284, 55 Atl. 758; Dearing v. Selvey, 50 W. Va. 4, 40 S. E. 478. 55 Hudson v. Barratt, 62 Kan 137, 61 Pac. 737; In re Morrison's Estate, 68 Ohio 252, 67 N. E. 567. See, also, § 1339. 56 Slagle v. Entrekin, 44 Ohio St. 637, 10 N. E. 675. See, also, In re Radovich, 74 Cal. 536, 5 Am. St. Rep. 466, 16 Pac. 321; Nevitt v. Woodburn, 160 an administrator may have been a nullity, yet if letters have been issued to him and under such letters he has taken possession of assets of the estate and has been guilty of misappropriation, he can not evade liability and the duty to account because of the fact that his appointment was void.57 The general rule is that where the personal representative of an estate dies, the executor or administrator of the estate of the deceased personal representative must settle the accounts of his decedent.58 In the absence of a statute giving jurisdiction to the probate court, a court of equity only has jurisdiction to compel the executor or administrator of the deceased representative to settle the account of his decedent with the estate which his decedent represented.59 Unless conferred by statute the probate court has no authority to cite the representative of a personal representative to settle the latter's accounts with the estate which he represented;60 and it has no jurisdiction to receive or act upon an account presented by the representative of a personal representative against the estate of which the latter had been the representative."1 Ill. 203, 52 Am. St. Rep. 315, 43 57 Appeal of Ela, 68 N. H. 35, 38 Atl. 501; Dobler v. Strobel, 9 N. D. 104, 81 Am. St. Rep. 530, 81 N. W. 37. 58 Wilson v. Hinton, 63 Ark. 145, 38 S. W. 338; Smithers v. Hooper, 23 Md. 273; Muncaster v. Muncaster, 23 Md. 286; Hoagland v. Cooper, 65 N. J. Eq. 407, 56 Atl. 705; Matter of Irvin, 68 App. Div. III Com. on Wills-37 (N. Y.) 158, 74 N. Y. Supp. 443; Jones v. Willis, 72 Ohio 189, 74 N. E. 166; Bowman's Appeal, 62 Pa. St. 166; Denton v. Schneider, 80 Wash. 506, 142 Pac. 10. 59 Chaquette v. Ortet, 60 Cal. 594; Estate of Curtiss, 65 Cal. 572, 4 Pac. 578; In re Herren's Estate (Gatch v. Simpson), 40 Ore. 90, 66 Pac. 688. 60 Bush v. Lindsey, 44 Cal. 121, 124. 61 Wetzler y. Fitch, 52 Cal. 638, 643. A court of equity, when it determines that the estate of the representative is indebted for moneys received from the estate of the first decedent, may direct payment and the decree is regarded in the light of the decree of the probate court settling the account and directing payment.62 The estate of the deceased representative and the sureties on his bond are also financially liable for all moneys and property in the hands of the representative at the time of his death and belonging to the estate which he represented. There must be an accounting for all assets administered by the first representative and all unadministered assets must be turned over to the administrator de bonis non of the estate of the original decedent. If this is not done, the next of kin of the first decedent, or the administrator de bonis non of his estate in some jurisdictions, may sue any person in whose hands there may be any administered or converted assets of the first estate, or an action on the bond of the deceased representative may be brought. The administrator de bonis non of the estate of the first decedent may take any necessary action to reduce the unadministered assets of the estate to his possession. These matters are now largely regulated by statute. And where the personal representative of the first decedent was in default at the time of his death, a claim for an accounting may be presented in the probate court against the estate and personal representatives of the deceased representative. The probate court may hear and determine the merits of the claim as an equitable proceeding, and order the payment of the amount found due. Such an order does not give a right to an execu 62 Chaquette v. Ortet, 60 Cal. 594, 601. 63 See §§ 1251, 1252. 64 Bliss v. Seaman, 165 Ill. 422, 46 N. E. 279. tion against the personal representative of the deceased representative, but simply determines the amount for which the deceased representative, by his representative, shall be charged for assets for which there has been no accounting. It fixes the status of the deceased representative with respect to the estate of the first decedent at the time of such decedent's death.65 66 §1578. Probate Court Has Jurisdiction to Compel Accounting. Original jurisdiction is vested in the probate court to compel the personal representative of an estate to account. The fact that the petition alleges the representative has rendered the estate insolvent by fraudulently causing the transfer, to himself individually, of stock belonging to the estate, and prays a retransfer of the stock, does not give a court of equity jurisdiction, it being in effect an attempt to compel an accounting. If the representative is ordered to account by the probate court and fails to do so, such court may remove him and order a suit to be brought upon his bond. If the stock is in reality an asset of the estate, it is immaterial how it came into the hands of the representative; and as to the maintenance of a bill in equity, it is immaterial whether or not the estate had been rendered insolvent by the transfer of the stock. Where the estate is yet in the course of administration and the personal representative whose letters have been revoked has not filed an account, the proper procedure is to compel an accounting by him in the probate court, and until such accounting is had a suit 65 Davis v. Eastman, 68 Vt. 225, 35 Atl. 73. 66 Magraw v. McGlynn, 26 Cal. 421, 430; Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737; Ammidown v. Kinsey, 144 Mass. 587, 12 N. E. 365; Green v. Gaskill, 175 Mass. 265, 56 N. E. 560. 67 Greene v. Brown, 180 Mass. 308, 62 N. E. 374. on the bond of the representative who has been removed not authorized, nor can equitable jurisdiction be invoked.68 is § 1579. Who May Object to an Account: Duty of Court. 69 Upon the settlement of an account, every creditor, heir, next of kin, devisee or legatee, is an interested party and as such has the right to appear and to take exceptions to the account. If they do not appear they are considered as having no objections to the account as rendered. The right to appear and contest the account of a personal representative is restricted to persons who are interested in the estate, but if there is any doubt as to the question of interest, it should be resolved in favor of the objecting party.70 A creditor may object to the account since he has an interest in the assets of the estate."1 An administrator may contest the account of his predecessor, since it is his duty to protect the estate against all unlawful claims; and it is also the duty of the court to do so at the suggestion of any party or upon its own motion.72 The guardian of a minor beneficiary has the right to represent the interests of his ward and contest the account of the personal representative; and the fact that an attorney has been appointed to represent minor heirs does not deprive the guardian of such right.78 The attorney of the executor or administrator, however, can not file excep 68 Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737. See, also, Weihe y. Statham, 67 Cal. 84, 7 Pac. 143; Grow v. Dobbins, 128 Mass. 271. 69 Estate of McDougald, 143 Cal. 476, 479, 77 Pac. 443. 70 Garwood v. Garwood, 29 Cal. 514, 519. See, also, Estate of Adams, 131 Cal. 415, 417, 63 Pac. 838. 71 Tompkins v. Weeks, 26 Cal. 51, 58; Estate of McDougald, 146 Cal. 191, 194, 79 Pac. 878. 72 Estate of Spanier, 120 Cal. 698, 53 Pac. 357. 73 Estate of Rose, 66 Cal. 241, 5 Pac. 220. |