In re Moore

Harrison, J. The special administratrix of William H. Moore, deceased, having filed her final account for settlement, the heirs of the decedent filed objections to the allowance of certain items therein, and the court, after hearing the parties thereto, settled the account by allowing a number of the items objected to, and disallowing the remainder. From this order the heirs have appealed to this court.

The chief objection to the action of the court is its allowance for certain expenditures in the repairs of the Pacific Ocean House. Prior to making these repairs, the special administratrix had obtained an order from the superior court, allowing her to expend a certain sum of money for said repairs, in which was designated the particular repairs to be made, and the amount allowed for each, and winch also declared “the above amounts being the full costs of repairs, which said administratrix is authorized to make. ” After obtaining this order she proceeded with the repairs, and completed some at less expense than she was authorized to make, while in others she expended more than was permitted by the order; and she also made other repairs which were not included within the order; so that the total amount expended by her was in excess of the amqunt allowed by the order.

It is urged by the appellants that the court was not [3]authorized to allow any items in her account for expenditures which were not embraced within its previous order allowing her to make the repairs.

The office and duties of a special administrator are very similar to those of a receiver in equity. Each is appointed by the court to take charge, under its directions, of property in litigation, or which is involved in the proceedings before it, with a view to its care and preservation for the parties to whom the court may ultimately decide that it belongs. The powers and duties of each are special, and limited to such as are defined by statute, or expressed in the order of his appointment, or which he may from time to time receive for the purpose of more effectually preserving the estate intrusted to his charge. If it becomes necessary during his management to make any repairs, his expenditures therefor must be sanctioned by the court appointing him, either by previous order or by subsequent approval, before he can reimburse himself from the funds of the estate. A •prudent person would obtain from the court an order therefor before making such repairs, but it is not an indispensable requisite that he should do so. If he is willing to forego such protection, and to rely upon his belief that the court will ratify his acts, there is no rule of law which will deprive the court of the power to reimburse him if his acts and expenditures are approved. In Tempest v. Ord, 2 Mer. 55, Lord Eldon said that “ formerly the court never permitted a receiver to lay out money without a previous order of the court, but now, when the receiver had laid out money without such previous order, it was usual to refer it to the master to see if the transactions were beneficial to the parties, and if found to be so, the receiver was allowed the money so laid out.” This rule was followed in Adams v. Woods, 15 Oal. 206, where the action of the district court in disallowing certain payments by the receiver, on the ground that they had been made without any previous