Action upon an administrator's bond. Judgment for plaintiff for a lesser amount than claimed in the complaint. Plaintiff appeals from the order denying a new trial.
It is made to appear in the record that one Graves was appointed administrator of the estate of Elizalde on the twentieth day of January, 1894, and executed a bond at the date of such appointment, and certain subsequent bonds, as required by the order of the court; that on May 28, 1898, said administrator filed his second annual account, which was duly allowed, from which it appears that on said date he held in his possession $5,133.50 belonging to said estate; that the administrator died July 15, 1900, without rendering any further account; that after the filing of his said account the administrator received $562 in addition. Upon a trial of this action, the court below found the administrator had received, and was chargeable with $5,696, and credited him
with certain payments not disputed, together with other payments the subject of controversy upon this appeal — one of $940 advanced to the widow as part of her distributive share, and $550 for expenses and attorney's fees to one Leme, and for expenses and extraordinary services of the administrator.
Appellant's contention is that these credits last mentioned were not proper matters to be credited by the court in this action, and no credit therefor should be allowed at the instance of the sureties. With this we agree. In so far as the advance to the widow is concerned, it was not even proper subject of the final account. (Estate of Willey, 140 Cal. 240, [73 P. 998]; Estate of Rose, 80 Cal. 179, [22 P. 86].) The only right of an administrator who anticipates the distribution to the widow or heirs and pays in advance of such distribution, is, when distribution is ordered, to have such payments retired therefrom and receive a credit on account thereof from the distributive share so to be charged. (Estate of Willey,140 Cal. 240, [73 P. 998].) It does not even appear that any sum will be due the widow upon final distribution; and it is not material what property may have heretofore been distributed to her, against which the administrator in making the advancements made no claim. Whatever may be the rights of subrogation to which defendants are entitled, the same can only be worked out upon the final decree of distribution. We are of opinion, also, that the allowance of attorney's fees, expenses, and for extraordinary services are matters which can only be adjudicated in the probate court in the final or some subsequent account. The mere fact that the administrator made no such claim when filing his previous accounts should not be taken as an absolute waiver. But the reimbursement to which an administrator is entitled on account of such payments or such services is a right personal to himself, and one which he may waive; and until it is asserted, either by the administrator or by his personal representatives, in an account and upon a petition presented to the probate court, they are not proper subjects of adjudication, and were we to say that this right of the principal on the bond to assert the claim is one to which sureties might be subrogated, yet it must follow that such sureties would be restricted in the enforcement of such subrogated rights to the mode prescribed for their enforcement
by the principal. (In re Moore, 96 Cal. 526, [31 P. 584]; Inre Levinson, 108 Cal. 456, [41 P. 483, 42 P. 479].) And matters which are the subject of account are exclusively within the jurisdiction of the probate court. (Toland v. Earl,129 Cal. 152, [79 Am. St. Rep. 100, 61 P. 914]; Estate of Freud,134 Cal. 336, [66 P. 476].)
Further objection is made by appellant to the refusal of the court to charge the administrator with the inventoried amount of a note of one Dargie. The court found that there was no negligence upon the part of the administrator in his failure to realize upon this asset. "It is true that when an administrator receives a note, and the maker thereof is solvent, but afterward becomes insolvent, the burden of proof is on him to show that with due diligence he could not have collected it." (In re Moore, 96 Cal. 526, [31 P. 584].) The measure of an administrator's duty is to act with fidelity and with that degree of prudence and diligence which a man of ordinary judgment would be expected to bestow upon his own affairs of a like nature. (In re Moore, 96 Cal. 526, [31 P. 584].) There is evidence in the record tending to show that, notwithstanding the return in the inventory, Dargie was at all times insolvent. There is evidence tending to show that the note was placed in the hands of a collector and that nothing could be realized thereon. This being true, were it even to be assumed that the taking of a new note with the insolvent wife as surety was not warranted, yet no loss upon the estate would be entailed. The mere failure to sue does not establish negligence. It is only the failure to proceed when a reasonable prospect of collection is apparent which should be said to be negligence. There being evidence tending to support the trial court that there was no negligence upon the part of the administrator, we are not inclined to disturb the same.
We find no other errors in the record.
The order is reversed and cause remanded for further proceedings.
Gray, P. J., concurred.