Pryor v. Downey

RHODES, J. — The plaintiff claims title to the premises in controversy under the will of his father, Nathaniel M. Prior, deceased, and the defendants claim title through a sale and deed made in 1853 by the administrator with the will annexed of said deceased. The proceedings in the probate court were attacked by the plaintiff on many grounds, but we find it necessary to notice only one of them. On the 3d of February, 1851, the court made the following order: “ In the matter of the Estate of Nathaniel M. Prior — proof having been made to the court that notice has been given according to law of the application for letters of administration now pending, and no person appearing to contest said application; it is ordered by the court that Thomas Forster be appointed administrator with the will annexed of Nath. M. Prior, and that he give security according to law, and that until the filing of bond the said Thomas Forster is appointed special administrator of said estate.” Among the papers of the estate there was found a bond purporting to be the bond of Forster as such administrator, signed by him and one surety; but it was not filed, the surety did not justify, nor did- the probate judge approve the bond.

It does not appear that letters of administration were issued to Forster or that he took or subscribed the oath prescribed for administrators. The seventy-second and seventy-third sections of the Probate Act then in force provided that before the letters should issue, the administrator should take and subscribe an oath to perform according to law the duties of administrator, and should execute a bond to the state, with two or more sureties, to be approved by the probate judge. The bond in this ease, even if it had been filed, cannot be regarded as the bond provided for by the statute. Whatever may be the rule as to the necessity for proof that letters have in fact issued, in a case where the order for letters was [838]made, and the appointee qualified and filed his bond and the bond was duly approved, -it is beyond all question, that in the absence of proof that letters issued, he will not be held to be the administrator, unless he has qualified and given the requisite bond and the bond has been approved by the probate judge. Until these acts are performed, he is not entitled to receive letters; his appointment is in fieri: Estate of Hamilton, 34 Cal. 469. The order in this case speaks the same language. Forster is appointed special administrator until the filing of his bond as administrator with the will annexed. We are, therefore, compelled to hold that he was not the administrator with the will annexed of Nathaniel M. Prior, deceased. The statute did not authorize a special administrator to sell real estate. The probate court, therefore, had no authority to make the order of sale in this case; and in our opinion both the proceedings in the probate court and the administrator’s deed are void.