Ex parte Casey

Foote, C. Mrs. Ellen Casey, the petitioner, is in possession of a sum of money which the executor of a certain Mrs. Zephyr claimed as belonging to the estate of his decedent. After an examination under the statute (Code Civ. Proe., secs. 1459-1461), Mrs. Casey was cited to show cause why she should not be punished for a contempt of the Probate Court, in not obeying its order commanding her to deposit the money in a bank, subject to that tribunal’s order.

She appeared, claimed that the money had been given to her by Mrs. Zephyr before the latter’s death, and introduced evidence tending to establish her own title to it. The court heard testimony in favor of and controverting her right to the money, and then made its order, committing her for contempt in refusing to deposit it in a bank. The petitioner has sued out a writ of habeas corpus for the purpose of regaining her liberty.

According to the evidence adduced in this proceeding, the petitioner was either the owner by gift from Mrs. Zephyr of the money in controversy, or she had em[270]bezzled it after the latter had intrusted it to her to be deposited in bank.

The dispute between Mrs. Casey and the executor necessarily involved the title to that money. And the question for determination is, whether or not the Probate Court had the right, upon such a summary proceeding as that taken here, to order Mrs. Casey to be committed for contempt in failing to obey its order, which involved the transfer of the property which she claimed and asserted title to, into the custody of a bank of the court’s choosing.

If the evidence had shown that Mrs. Casey claimed no title to the money in dispute, but admitted it to be the decedent’s property at her death, the question presented would be different. But here the claim is made, and supported by some evidence at least, although there is a sharp and decided conflict about it, that the money which the executor claims as assets of the decedent’s estate was given to Mrs. Casey, and was in her possession as her property before the decedent’s death. It necessarily follows, then, that in order to convict Mrs. Casey for contempt in not obeying the order of the Probate Court, that tribunal must have decided that the title to this property was not in her. Can such an issue, vital to the exercise of the court’s power, be legally determined in such a proceeding ?