Deer Lodge Cnty. v. Kohrs

• Decision Date: 31 January 1874
• Citation: 2 Mont. 66
• Parties: DEER LODGE COUNTY, appellant, v. KOHRS, respondent.
• Court: Montana Supreme Court

2 Mont. 66

DEER LODGE COUNTY, appellant,

v.KOHRS, respondent.

Supreme Court of the Territory of Montana.

January Term, 1874.

Appeal from Second District, Deer Lodge County.

KOHRS was the administrator of the estate of Frederickson, deceased. The Board of County Commissioners of Deer Lodge County commenced this action in behalf of the county, which was a creditor of the estate. The probate court entered judgment in favor of Kohrs, January 25, 1873. An appeal was then taken to the district court and dismissed by the court, KNOWLES, J., upon the motion of Kohrs.

J. C. ROBINSON, District Attorney, Second District, and CHUMASERO & CHADWICK, for appellant.

The Organic Act and amendment thereto give probate courts entire jurisdiction of the acts of administrators in taking charge of estates of deceased persons. These are the only courts that can call administrators to account for malfeasance in the performance of their duties. Creditors can apply for an inquiry, if administrator has not made just accounts, and probate courts can direct issues to be tried thereon. Cod. Sts. 365, §§ 272, 274.

The district court had jurisdiction of this case. The probate court could act and decide the questions of waste and the amount thereof. An action could be brought, based on such findings of waste, in some court having jurisdiction to render judgment for the amount so found. Congress intended that probate courts should render judgment for the amount of such waste.

The second section of the amendment to the Organic Act extended the power of probate courts. “In addition to their probate jurisdiction,” is the language used. The limitation of the jurisdiction to $500 applies to what are legitimate civil cases. Unless probate courts can render judgments in matters belonging to their probate jurisdiction, no proper or effectual administration of estates can be had.

SHARP & NAPTON, for respondent.

The probate court did not have jurisdiction of this action. Amendment to Organic Act, § 2; Civ. Pr. Act, § 628; Burrill and Bouv. Dict., “Probate.”

WADE, C. J.

The only question involved in this case relates to the jurisdiction of the probate court. This action was commenced in the probate court of Deer Lodge county, and from thence appealed to the district court, wherein it was decided that the probate court had no jurisdiction in the case, and from this decision appeal was taken to this court.

The complaint charges that the administrator committed waste in this, that he converted to his own use about $1,800 worth of the property of the estate, and failed to account for the same to the estate or to the creditors thereof, of whom this plaintiff is one, and asks a judgment against such administrator for double the amount of the property thus wasted, in pursuance of a provision of the statute.

It is claimed that this proceeding is a civil action, and that, by virtue of section 2 of the amendment to the Organic Act, wherein it is provided that probate courts, in addition to their probate jurisdiction, shall have authority to hear and determine civil causes, wherein the debt or demand claimed does not exceed $500, necessarily excludes the jurisdiction of the probate court to hear the matters herein involved, for the reason that more than $500 are in dispute.

To decide this case properly it will be necessary to determine what is meant by the term “probate jurisdiction,” as used in the Organic Act.

The Organic Act provides (section 9) that the jurisdiction of the probate courts shall be limited by law.

This section, therefore, confers upon the legislature authority to define the probate jurisdiction of this court, and, in pursuance of this authority, the legislature has bestowed upon such courts jurisdiction as follows:

Civ. Pr. Act, § 626. “There shall be in each county a probate court, with the jurisdiction conferred by this chapter.”

The jurisdiction conferred by the chapter, so far as it affects this case, is as follows:

Civ. Pr. Act, § 627. “The probate court shall have power to open and receive the proof of last wills and testaments, and to admit them to probate; to grant letters testamentary of administration and of guardianship, and to revoke the same for cause shown, according to law; to compel executors and administrators and guardians to render an account when required, or at the period by law designated; to order the sale of property of estates, or belonging to minors; to order the payment of debts due by estates; to order and regulate the partitions of property or estates of deceased persons; to compel the attendance of witnesses; to appoint appraisers or arbitrators; to compel the production of title deeds, papers or other property of an estate or of a minor, and to make such other orders as may be necessary and proper, in the exercise of the jurisdiction conferred on the probate court.”

Here is the jurisdiction of the probate courts, as it relates to the settlement of estates, and it will be observed that, although the court can make all the necessary orders in the premises, it cannot render judgments.

By virtue of this section, the probate court is clothed with authority to appoint administrators, and, therefore, to place in their hands the property belonging to estates, and to compel a settlement and distribution of the property. And by appropriate legislation, and in order to carry out and to exercise the jurisdiction conferred by the foregoing section, the probate court has authority to cause an administrator to file an inventory of the estate; to cite such administrator to render an account at any time; to hear exceptions to his accounts; to hear charges against him or other persons for embezzling the property of the estate, and also to hear charges as to the commission of waste by such administrator. All these powers and this authority necessarily grow out of the jurisdiction conferred by section 627, and are purely of probate jurisdiction, and are not affected by the $500 limitation, contained in section 2 of the amendment to Organic Act, because they are not civil actions. All this authority is necessary to properly preserve and administer an estate. But it was not contemplated by the legislature that judgments could be rendered against an administrator in any of these cases, for the probate ...