State ex rel. Bartlett v. Second Judicial District Court , 18 Mont. 481 ( 1896 )

Hunt, J.

It has been established by the decisions of this court that the jurisdiction of the district court sitting in probate matters is limited to the powers conferred upon it by statute, that is, to the control of the “administration of decedent’s estates, the supervision of the guardianship of the infants, the control of their property, the allotment of dower and other powers pertaining to the same subject.” (In re Higgins' Estate, 15 Mont. 474; Chadwick v. Chadwick, 6 Mont. 566.) If, therefore, there was no authority of statute for the district judge to authorize the payment of the debt due by the Kelly estate to the bank, the whole proceeding directing such payment was void, and the writ should issue.

The powers of a special administrator are limited. He is ‘1 to collect and take charge of the estate of the decedent * * * and to exercise such other powers as may be necessary for the preservation of the estate.” (§ 2500, Code of Civil Procedure.) Again, the statute authorizes him to collect and preserve for the executor or administrator all incomes, rents, issues and profits, claims and demands of the estate; he must take charge and management of, enter upon and preserve from damage, waste and injury the real estate, and for any such and all necessary purposes may commence and maintain or defend suits and other legal proceedings as an administrator. He may sell perishable property in certain instances, and “exercise such other powers as are conferred upon him by his appointment, but in no case is he liable to an action by any creditor. ’ ’ (§ 2504, Code of Civil Procedure.) These statutes limit the functions of a special administrator to the exercise of powers necessary to collect and preserve the estate for the executor or administrator to be regularly appointed. The enumeration of particular powers such as to sell such perishable property as may be ordered sold, and to collect rents, etc., is but to enable a special administrator to collect and preserve what otherwise might not be collected and preserved for the estate by any one in authority. The authority £ £ to exercise such other powers as are conferred upon him by his appointment ’ ’ is but a further power to do what may be necessary to collect and preserve; it is not a power to exercise the powers and duties conferred upon a regular executor or administrator such as the allowance or payment of claims. £ £ The paramount duty of this special administrator is to collect all the personal estate of the deceased, and preserve the same for the general executor or administrator, when appointed.5 5 (Schouler on Executors and Administrators, § 135; Crosswell on Executors, § 223; Long v. Burnett, 13 Iowa 28; Henry v. Superior Court, 93 Cal. 569.)

The provision of the statute that in no case is a special administrator liable to an action by any creditor on a claim against the estate confirms the view just taken. He cannot be sued upon a claim. If he cannot be sued, plainly he cannot reject a claim, otherwise a creditor would be remediless where a special administrator might unjustly reject a creditor’s claim. (In re Sackett, 73 Cal. 300; Pickering v. Weiting, 47 Iowa 242.)

It is contended that the court was authorized to make the order under § 2623, Code of Civil Procedure, which is as follows : “If there be any debt of the decedent bearing interest, whether presented or not, the executor or administrator may, by order of the court or ]udge, pay the amount then accumulated and unpaid, or any part thereof, at any time when, there are sufficient funds properly applicable thereto, whether said claim be then due or not; and interest shall thereupon cease to accrue upon the amount so paid. ’ ’

But we think that this statute is part of the method of administration governing general administrators. It is appropriately placed in the chapter entitled “Claims against the estate, ’ ’ and has relation to the payment of claims during the regular and orderly administration of estates, and not to the duties of a special administrator to whom claims need not even be presented. It is, therefore, unnecessary to discuss the powers of a general administrator under the statute quoted.

It is argued that the relator has a remedy by appeal and therefore is not entitled to the writ prayed for. But inasmuch as the court had no authority to direct the special administrator to pay the debt ordered to be paid, the order of payment was made without the jurisdiction of the court and is subject to review and annulment in this proceeding.

It is also contended that the relator does not appear to be a party beneficially interested and therefore is not entitled to the writ. (§ 1942, Code of Civil Procedure.) But, as the special administrator is authorized to commence and maintain or defend suits and other legal proceedings necessary to collect and preserve the estate, surely he should be entitled to a writ of review of an order of the district court made without jurisdiction, and under the terms of which as special administrator he would be obliged to pay to a creditor the sums he had, collected and ought to preserve for the general administrator or executor. We think, too, that the relator has a direct beneficial interest in this proceeding, because if he pays out the funds of the estate upon an order of the court made without jurisdiction, such an order may not protect him and he may be held personally liable on his bonds..

The motion to quash is denied and the order of the district court is annulled.

PembeetoN, C. J., and De Witt, J., concur.