Irish v. Brannen

ROSS, C. J. (After Stating the Facts as Above.)— We are satisfied that the court’s findings of fact are amply supported by the evidence, and assignments of error directed at the findings will not be discussed. In a memorandum, opinion the trial judge very carefully and painstakingly analyzed the evidence, and we are in entire accord with his conclusions thereon. Now, if these facts show anything it is that the Baxter estate was indebted to Irish: First, upon a contract to pay ten per cent of one-sixth of certain moneys realized from the operatipn of the Minnie [97] mine by Bush and Baxter; and, second, that Baxter, as the agent of Irish, had come into the possession of certain moneys belonging to Irish out of the sale of the Minnie mine to the American Smelting & Refining Company, and that the same became and was a trust fund, whether in his possession or in the possession of his personal representatives, and was not and never became a part of the assets of Baxter’s estate. First Nat. Bank v. Hummel, 14 Colo. 259, 20 Am. St. Rep. 257, 8 L. R. A. 788, 23 Pac. 986; Lathrop v. Bampton, 31 Cal. 17, 89 Am. Dec. 141; 11 R. C. L. 281, par. 323. As to the first item, it being a debt of Baxter’s upon contract, and, after his death, a debt of his estate, the only way to make it a legal charge against the estate was to pursue the method provided by the statute by filing with the administrator for allowance a verified claim within the time fixed by law (paragraphs 882, 883, Civ. Code 1913), and, in case of its disallowance by the administrator or the judge, institute a civil action in the court having jurisdiction to hear and determine the matter. Paragraph 887, Id. This was not done. As to the second item, although it was a trust fund and! not a part of the Baxter estate, we think Irish, at his option, might have regarded Baxter’s and the personal representative’s conduct in connection therewith as a conversion of the funds, and filed a claim against the estate as for debt, and upon its disallowance brought a civil action in the proper court to establish his claim, or he could have instituted a suit on the equity side of the court for the purpose of having the personal representative declared his trustee of that particular fund, in which case there would have been no occasibn formally to present it as a claim against the estate. He did neither of these things. [98] What he did was to invoke the probate side of the court to take jurisdiction of and settle what he claimed was a partnership accounting. Had the facts disclosed the existence of a partnership as he contended, the statute plainly states that “the surviving partner has the right to continue in possession of the partnership and to settle its business,” accounting to the administrator of the decedent’s estate. Paragraph 970, Id. The law is. well settled that the superior court, exercising probate jurisdiction, cannot entertain an action for partnership accounting. Our paragraph 970 was taken from California, and has been construed by the courts of that state. In Andrade v. Superior Court, 75 Cal. 459, 17 Pac. 531, the court said: “The probate court has no authority to settle and adjust accounts between a surviving partner and the representative of a deceased one. Its power is limited to requiring the survivor to account. ... If the existence of a partnership between a decedent and survivor is denied by the latter, the probate court cannot adjudicate the question and decree the existence or nonexistence of the relation. ’’ Also Theller v. Such, 57 Cal. 459. Utah, whose statute is the same as Ours and California’s, has adopted this view. In re Tripp’s Estate, 51 Utah, 359, 170 Pac. 976. While, had the evidence disclosed a partnership as contended it would, if the case had been pending in a proper court, have obviated the necessity of filing any claim with the personal representative before instituting an action for accounting (Franklin v. Trickey, 9 Ariz. 282, 11 Ann. Cas. 1105, 80 Pac. 352), in this instance it would have had the effect of depriving the probate court of the power to act in the matter. [99] Claims against an estate in administration are not allowed or disallowed by tlie court, but by the judge. Paragraphs 884-888, Id. When suit is necessary to establish a claim against an estate, it must be brought in the same forum and in the same form as it would have been brought against the debtor had he not died, the only material change being a substitution of the personal representative for the deceased, and, in a proper case, the presentation of the claim, properly verified, before suit. For the reasons above suggested, the administrator appellant has made the point that the probate court had no jurisdiction of the subject matter in dispute, and therefore was without power to hear and determine the questions involved, and that his order directing the administrator to pay Irish what was found due him was void. This question was not presented to the lower court, and was not passed upon by the learned trial judge. It was first presented here, and if it were possible to waive the question of jurisdiction, it was done by all the parties acquiescing in the proceedings had. As the question of the court’s jurisdiction may be raised at any time, we have no choice except to pass upon it. We are satisfied that the whole proceeding was without the jurisdiction of the probate court, and so hold. This leaves the question's involved open to litigation in a proper forum as though they had never been tried in this proceeding. The order of allowance to Irish is vacated and set aside because the probate court had no power to make it. BAKEE and McALISTEE, JJ., concur.