Haynes v. Meeks.

HAYNES v. MEEKS.

The fair inference to be drawn from section one hundred of the "Act to Regulate the Settlement of the Estates of Deceased Persons," is, that the permission given an executor or administrator to resign in the one case specified, is a negative on such right in all others. July Term, 1857.

The Probate Judge is charged by law with the execution of special duties; he is not vested with plenary powers, but acts within an inferior and limited jurisdiction. Ib. The Probate Court has no power to accept the resignation of an administrator until he has first settled his accounts with the estate. Ib.

Where an adininistrator filed in the Probate Court his resignation, and on the same day the Court made an order reciting that the administrator had filed his resignation, and requiring him to turn over to the public administrator all the effects of the estate, and that he settle with the public administrator by the first day of the next term, and when such settlement should be fully made, the administrator and his sureties be released, and where no final settlement was made: Held, that such act was an acceptance, on the part of the Court, of such resignation. January Term, 1858. The Court had no right to accept the resignation of the administrator until he had settled his account with the estate, Ib.

But having exercised the right so to do, the error of the Court was merely voidable, and can not be taken advantage of collaterally. Ib.

The facts of the death of the intestate, and of his residence within the county, are foundation facts, upon which all the subsequent proceedings of the Court must rest. Un

less these facts exist, the Court can not make a single binding order in reference either to the subject-matter or the person. Ib.

But when these facts do exist, every subsequent movement of the Court, is the exercise of jurisdiction over the subject-matter, and over all persons who have been brought properly before it. Ib.

APPEAL from the District Court of the Twelfth Judicial District, County of San Francisco.

This was an action of ejectment brought by the plaintiff against the defendant, to recover the possession of a tract of land.

The facts necessary to explain the decision, are substantially

these:

George Harlan resided and died in Santa Clara county, in July, 1850, seized of the premises in controversy; and administration was duly granted to Henry C. Smith by the Probate Court of that county, in August, 1850.

On the 29th of November, 1853, Smith was cited to appear and show cause why an attachment should not issue against him, for failing to file his account for final settlement.

On the 31st of December, 1853, Smith filed a paper, which is in these words: "Henry Smith, administrator of the estate of George Harlan, deceased, hereby resigns his appointment as such administrator, and asks that this, his resignation, be received, and he be discharged therefrom."

On the same day, the Court made an order reciting that Smith had filed his resignation; that, therefore, he turn over to the public administrator all the effects of said estate for purposes of general administration; that he settle with the public adminis

Haynes v. Meeks.

trator by the first day of the next term; and, that when such settlement should be fully made, Smith and his sureties be released from any further liability.

From the 24th of January, 1854, up to the 23d of May, 1854, various orders were made by the Court, in reference to the report and final account of Smith, showing a large balance in his hands unaccounted for.

On the 18th of May, 1855, Benjamin Aspinwall filed a petition praying the appointment of himself as administrator, stating that he was a creditor, and that Smith and his sureties were insolvent.

The Court appointed Aspinwall administrator de bonis non of the estate on June 15th, 1855.

Such proceedings were afterwards had, that the premises in controversy were sold by order of the Court, and the plaintiff became the purchaser.

The defendant claims, and has possession of the property, under conveyances from the heirs of Harlan.

This suit was brought to recover possession of the property. The defendant had judgment in the Court below, and the plaintiff appealed.

This case was first decided at the July Term, 1857, and at the January Term, 1858, the second opinion was delivered on re-argument. After the second opinion was rendered, a petition for a re-argument was again filed, and at the present term the petition was disposed of by the Court without any change in its former opinions.

Crockett & Page for Appellant.

On the first point, the argument of the respondent's counsel is: first, that in point of fact and law, Smith's resignation as administrator, was not accepted by the Court; second, that he never settled his accounts, and without such settlement, the Court, under our statute, had no power to accept his resignation. That his resignation was, in point of fact, accepted by the Court, would appear too plain to admit of a doubt. The fact that he is ordered immediately to turn over to the public administrator all the papers and effects belonging to the estate, for the purpose of general administration, and is required to settle his whole account with the public administrator without delay, would seem to place the question beyond dispute.

The case of Beckett v. Selover, 7 California Reports, 215, is cited in support of this position; but it does not sustain it, for two reasons: first, because in that case, it is decided that the acts of the public administrator would not be void; and, second, because, in this case, the order of December 31st was, in substance, an order granting letters to the public administrator. But if the order was void, it would be wholly immaterial, inas

Haynes v. Meeks.

much as it is only cited as proof that the resignation was accepted; and, as evidence of the intention of the Court, it is equally sufficient, whether it was in fact a valid order or not.

The statute provides (Acts of 1851, pp. 459, § 100) that an executor or administrator may at any time resign by writing filed in the Probate Court, "provided he shall first settle his accounts and deliver up all the estate, to such person as shall be appointed by the Court." It is manifest that the right to resign was intended as a benefit to the administrator, which he might exercise at any time with the consent of the Court; but to which he was not entitled as a matter of right, until he had first settled his accounts and delivered over the estate to his successor. The spirit of the act obviously contemplates that the Court may permit him to resign, without such settlement; but may refuse its assent, and compel him to proceed with the administration, if it sees fit, until his accounts are settled.

But respondent's counsel insist that the case of Flinn v. Chase, 4 Denio, 85, is an authority directly in point, in support of their position. In that case, the administrator signed a paper renouncing the administration, for the reason that he was about to remove from that neighborhood; and having returned his letters to the surrogate, that officer accepted them, discharged the administrator from his trust, and appointed his successor. "But this," says the Court, "a surrogate has no power to do, except in special cases provided for by law, of which this was not one." It is very evident the Probate Court considered Smith as out of office. They manifestly interpreted their own acts as amounting not only to an acceptance of the resignation, but as a virtual and practical removal. This is proved not only by the order of December 31, but by their stringent dealings with him, and especially by appointing Aspinwall as his successor, Smith and his sureties being all insolvent, and no settlement of his accounts having been made.

"A removal from office may be implied from the appointment of another person." Bowerbank v. Morris, Wallace C. C. R., 118. "Where an administrator has left the State, and the Ordinary grants letters to another, this is of itself a sufficient judgment of revocation of the authority of first." McLaurin v. Thompson, Dudley's S. C. R., 335.

On this branch of the case, therefore, we maintain the following proposition, to wit:

1. That Smith's resignation was valid without a settlement of his accounts, if the Court accepted it.

2. That the Court did accept it, and his authority ceased eo instanti.

3. That by revoking its acceptance, the Court had not the power to reinstate him, by this method.

Haynes v. Meeks.

4. That the Court did not, in fact, revoke its acceptance, but only retained his accounts for settlement.

5. That the grant of letters to Aspinwall, of itself, operated as a revocation of the former letters.

6. That the Court, in granting the new letters, passed upon the sufficiency of the notice for the application, and its decision can not be questioned collaterally.

A. P. Crittenden for Respondent.

The plaintiff (appellant) claims title to the land in controversy under a sale made by Benjamin Aspinwall, as the administrator of the estate of Harlan, under an order of sale made by the Probate Court of Santa Clara county.

For the defendant (respondent) it is insisted:

1. That Aspinwall was never administrator of the estate of Harlan.

2. That the proceedings of the Probate Court under which the sale was made, were irregular and void for want of jurisdiction, and no interest in the land passed to the plaintiff by the sale.

Section one hundred is the only provision of our statute upon the subject, and it makes the previous settlement of the administrator's accounts and surrender of property, conditions which must be fulfilled before he can resign, and without their fulfillment the Court has no power to accept his resignation. The statement is clear and explicit. The administrator must first settle his accounts and deliver up the estate; in other words, he can not resign until after he has performed these acts. Smith performed neither of them. His accounts were not settled for months after his resignation was offered, (it is objected by the appellant's counsel that they never were settled,) and the order requiring him to turn over the estate to the public administrator was revoked before anything was done under it.

The Probate Court being a Court of limited jurisdiction, can exercise no powers except such as are expressly conferred upon it, and in exercising any power which is conferred, must do so in the mode pointed out by the statute. Without an express authority it can not, in any case, nor under any circumstances, accept the resignation of an administrator, any more than it can appoint one in a case in which the power of appointment is not given to it. It has no "plenary powers" as contended for, in virtue of which it can act. The statute is the only source of its power. If this be so, the position taken by the appellant's counsel, that an administrator has the privilege of resigning, as a matter of right, upon his first settling his accounts and turning over the estate, but that he might nevertheless resign at any time, without the consent of the Court, without first performing these acts, is manifestly untenable. The statute does not in any way whatever provide for nor permit a resignation without com

Haynes v. Meeks.

plying with these conditions; when these conditions are com plied with, then only, and as a matter of right, the administrator may resign.

The case of Flinn v. Chase, 4 Denio R., 85, is directly in point. This decision fully sustains the proposition, that a Probate or Surrogate Court can not accept the resignation of an administrator, unless the authority to do so is expressly given by statute.

The action of the Probate Court upon the proffered resignation of Smith, must be considered in connection with the law under which it was taken. The order of the 31st of December, 1853, was manifestly made with a view to the statute on the subject of resignations. It does not accept the resignation, but merely orders those things to be done which the statute makes pre-requisites of an acceptance. It is as clearly conditional as the statute itself. In the most explicit manner it requires, as a condition precedent to its taking effect, the settlement of the accounts and the delivery of the property. Neither of these things having been done, the order never took effect, and Smith was not discharged from the administration, nor was it transferred to the public administrator.

Moreover, this order was void. It required Smith to settle his accounts with the public administrator. Such a settlement would have been a nullity. It must be before the Court, and when made with a view to the discharge of the administrator, must be upon notice. §§ 233-237. It was also void so far as it sought to place the estate in the hands of the public administrator for purposes of general administration. This could only be effected by letters regularly issued upon petition and notice. Beckett et al. v. Selover, 7 Cal., 215.

Two authorities are cited in support of this power of removal by implication. The case of Bowerbank v. Morris, Wallace C.' C. R., 118, was a decision made in 1801, in the Circuit Court of the United States, for the Eastern District of Pennsylvania, upon the right to the office of marshal, an office held at the pleasure of the President. The Court decided that the former marshal was impliedly removed by the appointment of a successor, and that the removal took effect upon notice of the appointment being given to him.

The office of marshal is of a different class from that of administrator, and held by a different tenure. If an administrator held at the pleasure of the Probate Judge, and was removable at will, and without any cause assigned, there might be some analogy between the cases.

Dudley's S. C. Reports, from which the case of McLaurin v. Thompson is cited, contains decisions made in the State of Georgia, between the years 1821 and 1833, during which period, and down to the year 1849, there was no Supreme Court or Court of Appeals, the only appeal being from a common to a special jury.