Willson v. Hernandez

Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.

The administrator of an estate having resigned, appeared in the Probate Court to have a final settlement of the accounts. After the hearing, the Judge found him indebted to the estate in the sum of sixteen thousand dollars, and ordered him to pay it into Court. Upon his refusal to do so, this action was brought on the administration bond by the heirs.

Upon the resignation of the administrator, it was first the duty of the Court to appoint another, who alone would be competent to receive the estate from the retiring administrator, and complete its administration. Or if the estate was in a condition for distribution, then to decree severally in favor of the distributees against the administrator; for either he must pay the moneys of the estate to an administrator, who is the only proper custodian, or to the distributees to whom it belongs.

There is no rule to be derived, either from the ecclesiastical law or our statute of estates, which makes the Judge of Probate a fiscal agent, either to keep or disburse the money of an estate.

It follows, that the refusal of the administrator to pay the money into Court was no breach of the conditions of the bond. That portion of the decree which requires it, is coram non judice.

Judgment affirmed.