Olsen's adm'r v. Rich

JUDGE PRYOR delivered the opinion op the court. Section 47 of article 2 of chapter 39, General Statutes,, provides, that ‘ ‘ there shall be appointed in each county in. this state, by the county court thereof, a discreet, fit person, to act as administrator of decedents’ estates of which there is no personal representative, and as guardian of such orphans. [245] as have none.” Under this section of the statute, the county court of Kenton, on the 26th of August, 1875, by an order •of that court, appointed the appellant public administrator, and the latter qualified as required by law. On the 5th of December, 1877, by an order of the same •court, he was appointed administrator of the estate of John ■Olsen, the order reciting: “Ordered, that L. J. Blakely, public administrator and guardian of Kenton county, be, and he is hereby, appointed administrator of the estate of John Olsen, deceased, more than three months having elapsed since his death, and no one having applied for letters of administration on his estate.” In July, 1878, the appellant appeared in court and tendered his resignation as public administrator, which was accepted, and William Gray appointed a special commissioner “to make a settlement ■with him of all trusts in his hands as administrator. ’ ’ After his resignation as public administrator, the appellant, on the "5th of October, 1878, instituted the present action as the ■ administrator of the estate of John Olsen, and the court -below, being of the opinion that his resignation of the office of public administrator having been tendered and accepted prior to the institution of the action, held that it was a surrender of all the trusts confided to him by reason of his -office, and dismissed the action. The appellant, by reason of his appointment and qualification as public administrator, was ordered to take charge of the effects of the decedent, and to act in every respect as if ■he had qualified by giving bond with surety as the personal -representative of the particular estate. The general bond he had executed made his sureties responsible for the faithful discharge of his duties in administering each and all the ¡estates committed to his care as the public administrator. It [246] was in fact the bond in each particular case; and after administering, either by an order of the court or taking charge of the effects by reason of his being the public administrator,. his resignation of that office did not relieve him or his sureties from fully administering the estates under his control at' the time, and his successor in office cannot deprive him of' the right to fully administer an estate already in his hands, or release his sureties by voluntarily assuming to relieve the’ former administrator from responsibility. He may be removed from office for cause shown, as is. provided by section 48 of the same statute, or may resign > his trust after a settlement of his áccounts, as provided by section 46; but a resignation of his public office still leaves, him the representative of each and every estate committed, to his hands. He is no longer the public administrator, but is the administrator of the estates in his hands unadministered, with the same liabilities and duties as an ordinary-administrator. He became such administrator in fact: when ordered to take charge of the estate. Section 49, article 2, provides, that “the several county courts of the-commonwealth in which there is a public administrator and. guardian, shall confide to him the administration on the-estates of deceased persons in all cases in which by law the jurisdiction to grant letters testamentary or administrative applies, if it shall appear, after the expiration of three months-, from the death of the decedent, that no one will qualify as executor, or apply for administration,” &c. When this estate was confided to the appellant as administrator, it was-a personal trust. He was required to make an inventory- and settlement of the estate as the administrator of Olsen, and not as the public administrator, nor was the appointment of his successor retroactive, so as to make him the [247] ádministrator of all the estates that had been confided to the care of the appellant. Such a construction of the statute, besides multiplying the costs of administration, would lead to. the greatest confusion in determining the liability of each of the personal representatives. The successor of the public administrator may be required, by virtue of his office, to take charge of the estates upon which no administration has been had fpr three months after the death of the decedent, and where no administrator has. been previously appointed and qualified; but if there is. already an administrator, the county court has no power to. remove him, except for the causes provided by the statute. The public administrator is made the administrator of the particular estate by an order confiding it to him by the county court, and when undertaking to administer, he has no right to surrender the trust, unless his resignation is-accepted by the court as required by the statute, but must proceed to a final settlement, and is liable on his bond on his failure to fully administer. The appellant never tendered his resignation as the administrator of Olsen, and was therefore the proper party to institute the action, and it was error on the part of the court below to dismiss it. The answer filed by the appellee, although containing much surplus, matter, amounts to a denial of the negligence charged to> have caused the death of the intestate. The history appellee gives of the caving in of the embankment or dirt constitutes, no defense, and whether or not appellee was guilty of willful neglect is with the jury to determine. It is not necessary to notice the other errors assigned, as they are not prejudicial to the appellant. Judgment reversed, and cause remanded for further proceedings consistent with this opinion. ,