Marshall v. Marshall

• Court: Colorado Court of Appeals
• Writing for the Court: WILSON, J.
• Citation: Marshall v. Marshall, 11 Colo.App. 505, 53 P. 617 (Colo. App. 1898)
• Decision Date: 13 June 1898
• Parties: MARSHALL v. MARSHALL.

53 P. 617

11 Colo.App. 505

MARSHALL v. MARSHALL.

Court of Appeals of Colorado

June 13, 1898

Appeal from district court, Arapahoe county.

Suit by John C. Marshall against Mary Marshall, as administratrix of the estate of J.Y. Marshall, deceased, to establish a trust. From a judgment for plaintiff, defendant appeals. Affirmed.

Teller, Orahood & Morgan, for appellant.

Thomas Bryant & Lee, for appellee.

WILSON J.

This was a suit in equity originally instituted in the district court by John C. Marshall, as plaintiff, against Mary Marshall, administratrix of the estate of James Y. Marshall deceased, the East Denver Savings Bank, and H.E. Pack, as defendants. Plaintiff and the decedent were brothers. The complaint alleges that about May, 1888, the plaintiff removed from Leadville, Colo., to the republic of Mexico, for the purpose of taking charge of a ranch therein belonging to his brother, the decedent, and that he there remained in said employment until June, 1894, soon after the decease of his brother, when he returned; that upon his removal from the state he was the owner of 12,681 shares of the capital stock of the Alleghany Mining Company, which were on said date, and for a long time before had been, standing upon the books of the company in his (plaintiff's) name that he left the certificates of said stock in the iron safe of his brother at his office in Leadville; that during his absence the said mining company increased its capital stock from 150,000 to 500,000 shares, thus making plaintiff's said 12,681 original shares amount to 42,270 shares; that about said time the decedent, who was then president of the said mining company, for greater convenience of registry, as plaintiff was informed and believed, but without plaintiff's knowledge or authority, caused the new certificates of said stock for said 42,270 shares to be made out and issued to himself, and in his own name; that plaintiff never authorized said company, its secretary, or any one, to change the record ownership of said capital stock, upon its books or otherwise, and never consented to said change, either at the time, before, or after it was made, and that he never in fact knew of said change until after the death of his brother, and his return from Mexico in June, 1894; that upon his return he opened the safe in which he had left his stock, and found therein only three of the certificates originally issued to the decedent for the shares of stock coming and belonging to plaintiff, representing a total of 1,270 shares, but he did find in the safe, in addition thereto, certificates for 50,993 shares of the stock of the said mining company, belonging to decedent in his lifetime, and standing in his name, which said certificates plaintiff brought into court, and deposited to abide the result of this action. The complaint further averred that plaintiff had no knowledge as to how the decedent had disposed of the remaining certificates of stock issued to him in place of the stock owned by and due to this plaintiff, except as to one certificate for 30,000 shares, which he charged had been hypothecated to the defendant bank as security for a loan secured by decedent from said bank, and which then stood in the name of defendant Pack upon the books of said bank, as trustee for the bank. Plaintiff further alleged that the estate of decedent was wholly insolvent, and that he would be entirely remediless, and would lose all of his stock, unless he be allowed to recover the same from the stock found in the decedent's safe as aforesaid. The prayer was that decedent be declared to have held during his lifetime said 42,270 shares of stock as trustee for plaintiff, with no right or authority to sell, pledge, or in any manner dispose of the same, and that his administratrix be adjudged to have no right or title to said stock, or to the unpaid dividend thereon remaining in the hands of the company; that defendants the bank and Pack be commanded to deliver up the 30,000 shares of stock held by them; and that, in addition to that, recourse be had to the stock found in the safe of decedent, and surrendered to the court, to make up the full amount of 42,270 shares. The answer of the administratrix specifically denied, on information and belief, the material allegations of the complaint, and set up, by way of cross complaint, that plaintiff had forcibly entered the safe of decedent, and abstracted therefrom shares of stock belonging to his estate, and also documents and papers of value belonging to the estate. Judgment was prayed that plaintiff be required to turn over and surrender to the administratrix all of said certificates of stock and all of said documents and papers so taken and held by him. The answer to the cross complaint denied the taking by plaintiff from the safe of anything save the certificates of stock mentioned, and tendered into court. Upon trial the court found the issues in favor of plaintiff, except as to the 30,000 shares of stock hypothecated to the defendant bank. As to this, the finding was in favor of the bank and its trustee, Pack. It appearing that upon the same day a decree had been entered in the same court, in a suit therein pending, wherein one John D. Fleming was plaintiff and the appellant herein was defendant, adjudging and decreeing said Feming to be entitled to 15,000 shares of the said capital stock, and it appearing that there was not sufficient of the stock to satisfy the said judgment, and also the one in favor of plaintiff, and the court finding that both of these judgments were of equal priority, it was decreed that the stock found in the safe should be prorated between the said two judgments. From this decree the administratrix appeals. The decree, so far as concerns the 30,000 shares of stock hypothecated to the bank, not being brought up for review, either by appeal or assignment of cross errors, will require no further notice.

The first question presented, and one upon which the administratrix mainly relies to secure a reversal, is the contention on her part that the district court was without jurisdiction; that it being shown, upon the face of the complaint itself, and the pleadings, that the subject-matter of the controversy pertained to the settlement of the estate of a decedent, the county court of Arapahoe county, from which letters of administration issued, and in which administration was then pending, had exclusive jurisdiction. The constitution provides (article 6, § 11) that district courts shall have original jurisdiction of all causes, both at law and in equity, and such appellate jurisdiction as may be conferred by law. Article 6, § 23, provides that county courts "shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons appointment of guardians, conservators and administrators, and settlement of their accounts, and such other civil and criminal jurisdiction as may be conferred by law." It will be observed, at the outset, that the county court is not given exclusive jurisdiction, even in matters of probate. People v. Barton, 16 Colo. 78, 26 P. 149. It is well settled that county courts, sitting for the transaction of probate business, are courts of limited jurisdiction. They have no other powers than those given by the constitution and the statute, and such incidental powers as pertain to them for the purpose of enabling them to exercise the jurisdiction conferred. It is true that the county court is declared by the constitution to be a court of original jurisdiction, so far as probate business is concerned, yet in the exercise of its powers its jurisdiction is limited and special. People v. Loomis, 96 Ill. 377; Buckley v. Superior Court, 102 Cal. 8, 36 P. 360; In re Haas' Estate, 97 Cal. 232, 31 P. 893; Smith v. Westerfield, 88 Cal. 378, 26 P. 206. The subject-matter of this contest was specially and peculiarly cognizable in a court of equity, and in such a court only. Conceding that, under our laws, county courts sitting for probate business are not entirely devested of equity jurisdiction, yet, if they have any, it is that only which is incidental to their general powers of adjudicating claims against estates; and even then it does not extend to cases like this, where third parties must be brought into court, and conflicting interests composed and settled. Horner, Probate Law, § 45; Pahlman v. Graves, 26 Ill. 405; Moore v. Rogers, 19 Ill. 349; Dixon v. Buell, 21 Ill. 204. This was an action whereby, upon its face, plaintiff sought to enforce a trust against certain property. He cannot, therefore, be called a creditor, within the meaning of the probate law, but must seek relief in a court of equity. Schouler, Ex'rs, § 419; Guntor v. Janes, 9 Cal. 658; Cooper v. White, 19 Ga. 555. Even, however, if it should be admitted that he was in the position of creditor, it is well known that he might bring his action to determine his claim in the district court in the first instance, and not be compelled to first present it for allowance and adjustment in the county court. Another reason in favor of the jurisdiction of the...