Jahns v. Nolting

California Supreme Court Jul 1, 1866Published

Before: Rhodes

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Holding. An administrator may maintain an action in the nature of trover for the conversion of estate property occurring prior to the grant of administration, and section 116 of the Probate Act is a remedial, not penal, statute that provides an enhanced measure of damages rather than an exclusive remedy.

Issues

Whether section 116 of the Probate Act provides the exclusive remedy for the embezzlement of estate property occurring before the grant of administration.
Whether an administrator may recover for the conversion of estate property in an action of trover if the specific statutory requirements for embezzlement are not proven.
Whether a widow has the authority to gift personal property of the estate prior to the grant of administration.

Disposition. reversed

Quotations verified verbatim against the opinion

“An action of the nature of an action of trover may be brought by the administrator, without the aid of section one hundred and sixteen, against any person who has embezzled or alienated the personal property of the estate”

“The statutes of this, as well as those of other States, present many instances, in which no new rights of action or remedies for private injuries are created, but the damages authorized to be recovered are, by those statutes enhanced.”

“The Court below should therefore find upon the other issues in the case, although the finding may have been against the plaintiff, as to the alleged time of the conversion of the property”

Synopsis

Right to Possession op Personal Estate of Deceased.—Under the Statute of Descents and Distributions in this State, the title to the personal estate of the deceased vests in the heir, but the administrator is entitled to the possession of the same, and this right of possession extends by relation back to the time of the death of the deceased.

Action for Wrongful Taking of Personal Estate of Deceased.—The administrator may maintain an action for the wrongful conversion of the personal estate of the deceased, intermediate the death and issuance of letters.

Same.—Such action may bo maintained against one who has embezzled or alienated the personal estate of the deceased, without the aid of section one hundred and sixteen of the Probate Act; and said section does not give a new right of action, but merely increases the damages.

Same, where Complaint alleges Embezzlement.—If the complaint in such action alleges that the defendant embezzled, alienated, and converted to his own use the personal estate of the deceased, and prays for double damages, the plaintiff is entitled to recover double damages, if the proofs sustain the allegation; but if the proofs of such conversion fail to show that it took place intermediate the death and the grant of letters, the plaintiff's recovery should be as in an ordinary action of trover.

Section One Hundred and Sixteen of Probate Act.—Section one hundred and sixteen of the Probate Act does not afford the exclusive remedy for embezzling and alienating the personal estate of the deceased, intermediate the death and grant of letters.

Same.—Section one hundred and sixteen of the Probate Act is not a penal, but a remedial statute.

Eight of Widow to give away Personal Property of Deceased.—A gift by the widow of the deceased of personal property of deceased, intermediate the death and issuance of letters of administration, does not confer upon the donee either title to or right to the possession of such property as against the administrator.

By the Court, Rhodes, J. The plaintiff, the administrator with the will annexed of Herman Schroeder, deceased, alleges in the complaint that after the death of Schroeder, and prior to the granting of the letters of administration, the defendant “ took, carried away, embezzled, alienated and has converted to his own use certain goods, chattels and effects which were of the estate of the deceased; also, that the defendant during said time collected and embezzled certain moneys and rents belonging to said estate, and wrongfully and unlawfully intermeddled with said estate and ordered the tenants to pay the rents to no one but himself, and thereby caused a certain sum to be lost to said estate,” and he prays for judgment for double the value of the property embezzled, and the money caused to be lost.

The Court found as facts: “ That the defendant did not etpbezzle or alienate and convert to his own use, contrary to the statute in such case made and provided, all or any of the [510]goods, chattels, effects, moneys, rents, or other property which were of the said Herman Schroeder, deceased, in his lifetime, as in the complaint of the plaintiff set forth, nor did he unlawfully interfere and intermeddle with said estate, and order the tenants of the real estate to pay the rents thereof accrued, and which should afterwards accrue, to none but himself, and did not thereby cause to be lost to said estate one hundred and forty-four dolíais, or any other sum, as in said complaint alleged.”

The plaintiff filed his exceptions to the finding, on the ground, among others, that the Court did not find whether, during the period mentioned and prior to the bringing of the action, the defendant took, carried away and converted to his own use, the goods and chattels mentioned, but the Court failed to remedy the alleged defect.

In denying the plaintiff’s motion for a new trial, the Court was of the opinion that the action was for embezzlement, and was brought under section one hundred and sixteen of the ■Probate Act, which alone gave the plaintiff a remedy for the alleged wrong, and that under the allegations of the complaint, the plaintiff was not entitled to recover for the wrongful conversion, as in ,the action of trover at common law—that he must prove the embezzlement or fail in the action. The counsel for the defendant holds to the same views, and offers as a further reason why the plaintiff could not recover, as in trover, upon the complaint in the cause, that the action given by section one hundred and sixteen is a penal action.

Jahns v. Nolting

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