SMITH, J., Concurring.
I concur in the order of reversal, and also in much of the reasoning of the opinion of Mr. Justice Allen. But the reversal should, I think, be placed on
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the broader principle, established by the decisions of the supreme court, that a suit cannot be maintained against the sureties on an administrator’s bond until there has been a settlement of his account, either in the probate proceedings under section 1629 of the Code of Civil Procedure, or by a bill in equity brought for that purpose.
(Graff
v.
Mesmer,
52 Cal. 636;
Chaquette
v.
Ortet,
60 Cal. 594;
Weihe
v.
Statham,
67 Cal. 84, [7 Pac. 143];
Reither
v.
Murdock,
135 Cal. 197, [67 Pac. 784];
Cook
v.
Ceas,
143 Cal. 225, [77 Pac. 65].)
In such a bill brought against the administrator the sureties may, perhaps, be joined
(Chaquette
v.
Ortet,
supra); and I can see no objection to this course. But in the present case the administratrix of the deceased Graves was not made a party; and, indeed, the demand of the defendants by proper supplemental pleadings to bring her in as a defendant was denied by the court.
This error may be cured by a proper order requiring her to be brought in as a defendant (Code Civ. Proc., sec. 389); but the question will still remain whether the court will then have jurisdiction of the ease. This question, under the existing constitution and some of the older authorities, is not altogether clear. Generally speaking, the matter of accounts of administrators, like other matters of probate jurisdiction, belongs exclusively to the probate court.
(Hope
v.
Jones,
24 Cal. 93;
Gurnee
v.
Maloney,
38 Cal. 87, 88, [99 Am. Dec. 352];
Weihe
v.
Statham,
67 Cal. 84, [7 Pac. 143] ;
Burris
v.
Kennedy,
108 Cal. 331, [41 Pac. 458].) This is admittedly the case with regard to administrators generally; and by the éxpress provision of the law an administrator whose authority has ceased, if he is still alive, may be cited to account (Code Civ. Proc., sec. 1629), and I can see no reason to suppose that it was intended to exclude the administrator of a deceased administrator from the provision of this section. The language of the section, in describing the case provided for, applies equally to a deceased administrator as to any other; and there is nothing in its provisions to indicate an intention not to include his administrator, except in the use of the word
“he,”
in the expression “he may be cited,’’ etc. His case, I think, comes within the reason, and, therefore, presumably, within the intention of the law.
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I would have no difficulty, therefore, were the question a new one, in thus construing the provisions of the section. But under the old law there was a similar provision with reference to the prohate court (Probate Act, sec. 229); and it was held, in effect, that the probate court did not have such authority, and that the account of a deceased administrator could be settled only by a suit in the district court sitting as a court of equity
(Bush
v.
Lindsey,
44 Cal. 121;
Wetzler
v.
Fitch,
52 Cal. 638;
Chaquette
v.
Ortet,
60 Cal. 594;
In re Allgier,
65 Cal. 228, [3 Pac. 848]); and the rule has since been applied, in at least one case, to the superior court in the exercise of its probate jurisdiction.
(Estate of Curtiss,
65 Cal. 572, [4 Pac. 578].) But with regard to the question of jurisdiction, there is a manifest difference between the old probate court and the superior court sitting in probate. The former had such jurisdiction only as was conferred upon it by the legislature (Const. 1849, art. VI, sec. 8), while under the present constitution the superior court has jurisdiction “of all matters of probate” (Const., art. VI, sec. 5); and it has also such equitable jurisdiction as may be necessary to the exercise of its proper functions.
(Burris
v.
Kennedy,
108 Cal. 331, [41 Pac. 458];
Heydenfeldt
v.
Superior Court,
117 Cal. 348, [49 Pac. 210] ;
Toland
v.
Earl,
129 Cal. 148, [79 Am. St. Rep. 100, 61 Pac. 914];
Estate of Freud,
131 Cal. 673, [82 Am. St. Rep. 407, 63 Pac. 1080];
More
v.
More,
133 Cal. 494, [85 Am. St. Rep. 166, 65 Pac. 1044].) It would seem, therefore, that, with this extensive jurisdiction, the court must have the power to require an accounting from the administrator of a deceased administrator, either under the provisions of section 1629 and in the mode there prescribed, or by virtue of its general constitutional jurisdiction and in such mode as the necessity of the case may require ; and that its jurisdiction in this regard should be held exclusive.
I assume, therefore, upon the authority of the decisions cited, that it is within the power of the court in the administration of an estate to adopt as the mode of procedure the form of a bill in equity; and to this no objection can be urged when the suit, as in this case, is in the court charged with the administration of the estate; but in such case, the equity suit must be regarded as merely ancillary to the administration and as a part of the proceedings therein. The court will,
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therefore, in the .present case, upon making the proper parties, have as full jurisdiction to pass on all the questions presented to it as it would have in an ordinary proceeding in the matter of the estate. It will, therefore, not only have jurisdiction of the several questions relating to allowances for extraordinary services, etc., but also to the alleged payment of $940 to Mrs. Victoria Elizalde, who for this purpose should be made a party—as was demanded by the defendants in the case below. As to this, the action of the court should be in conformity with the course pursued in the matter of the
Estate of Moore,
96 Cal. 527, 530, [31 Pac. 584], the authority of which case has not been affected by the later decision in
Estate of Willey,
140 Cal. 241, [73 Pac. 998]. I am of the opinion, also, that the credit claimed by the defendants for administrator’s fees should be passed upon, as well as every other question that may arise between the pending estate and the estate of the deceased administrator that could be determined in an ordinary proceeding for the settlement of an administrator’s account.