judgment against the decedent. The judgment creditor must present his claim to the probate court for allowance and payment in the due course of administration.38 While execution cannot, as a general rule, issue against the estate of a deceased person, it may issue against the interest of an heir, devisee or legatee therein, even before a final decree of distribution, subject to administrative proceedings. A representative may have execution on a judgment recovered in the name of a special administrator.40 39 RESIGNATION AND REMOVAL OF REPRESENTATIVES 1141. Resignation of representatives-Account-Statute-A representative may resign his trust at any time, but such resignation shall not be effectual for any purpose until the court shall have examined and allowed his final account, and made an order accepting such resignation. Prior to the enactment of this statute it was held that a representative could not resign his trust as a matter of right, but that the court might accept his resignation for good cause and revoke his letters. 42 41 1142. Grounds for removal-Statute-Whenever a representative becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has mismanaged the estate, or has failed to file an inventory of his account, or to perform any order or decree of the probate court, or has absconded, the court may remove him.43 A representative is "unsuitable" if he has any personal interests which prevent him from discharging his duties impartially. A representative may be removed on the ground that he has not proceeded in the settlement of the estate with due diligence.45 The fact that a representative's personal interests are such that he is not fitted to pass upon the expediency 38 See § 909. 39 Farmers Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805; In re Langevin's Will, 45 Minn. 429, 47 N. W. 1133; Byrnes v. Sexton, 62 Minn. 135, 139, 64 N. W. 155; Merriam v. Wagener, 74 Minn. 215, 77 N. W. 44; Watkins v. Bigelow, 93 Minn. 361, 368, 101 N. W. 497; Kolars v. Brown, 108 Minn. 60, 121 N. W. 229; Greenman v. McVey, 126 Minn. 21, 30, 147 N. W. 812. See G. S. 1913, § 7924 (3). 40 See § 1148. 41 G. S. 1913, § 7299. See 11 A. & E. Ency. of Law (2 ed.) 754, 811; 18 Cyc. 80, 148; 23 C. J. 1097; 13 L. R. A. (N. S.) 438; 13 Prob. Rep. Ann. 325; 8 A. L. R. 175. 42 Balch v. Hooper, 32 Minn. 158, 20 N. W. 124. See Simpson v. Cook, 24 44 Minn. 180, 183; Rumrill v. First Nat. 43 G. S. 1913, § 7300. See 11 A. & E. Ency. of Law (2 ed.) 815; 18 Cyc. 159; 23 C. J. 1110; Woerner, Am. Law of Adm. (2 ed.) §§ 266-274; Church, Probate Law, 494; 138 Am. St. Rep. 525; Ann. Cas. 1914C, 609; 1915D, 284; 8 A. L. R. 175 (what effects removal). 44 First Nat. Bank v. Towle, 118 Minn. 514, 137 N. W. 291; Corey v. Corey, 120 Minn. 304, 139 N. W. 509; Putney v. Fletcher, 148 Mass. 247, 19 N. E. 370; In re Mill's Estate, 22 Or. 210, 29 Pac. 443; In re McCluskey, 116 Me. 212, 100 Atl. 977. 45 First Nat. Bank v. Towle, 118 Minn. 514, 137 N. W. 291; Willson v. District Court, 166 Iowa 352, 147 N. W. 766; 46 47 of bringing an action to set aside transfers of the decedent and to prosecute the same is a ground for his removal. The fact that the person seeking the removal might bring an action is no reason for not making the removal. Evidence held to be such as to require the removal of an administrator because he had become "unsuitable" for the discharge of his trust on account of personal interests conflicting with his representative duties and because of his failure to perform the duties of his office with reasonable diligence. A representative may undoubtedly be removed for a failure or refusal to obey an order of the probate court.48 A representative appointed to prosecute an action under the statute for death by wrongful act may be removed by the probate court for failure to make proper distribution of the damages recovered.49 Upon a petition by a widow, who had renounced her husband's will, to remove the executor named by the will, on the ground of his personal interest in certain transfers made by the testator in his lifetime and alleged by the petitioner to be invalid, held, under the facts, that the establishment of the invalidity of such transfers was not essential to the granting of the relief sought. The fact that the petitioner was the only person who would be benefited by a restoration of the property so transferred held not to bar her right to have the matter passed upon by an impartial representative in the first instance, and to have such a person in charge of the estate so long as such matter is in controversy.50 An administrator filed his account in the probate court, with his petition, setting forth that from ill-health and advanced age he was unfit longer to serve, and praying that his account be allowed and settled, and that he be allowed to resign his trust, and that some suitable person be appointed in his place. Held, that an acceptance of his resignation by the court, upon a hearing had upon notice, made and entered of record in the form of an order, had the effect of a revocation of his letters.51 When a probate court legally probates a will, or appoints a first administrator, it thereby acquires jurisdiction to direct and control the administration; and such jurisdiction continues over the administration, as one proceeding, till its close; and all the court does in the course and for the purpose of the administration, including the removal or discharge of administrators, and the appointment of others, is sustained by the jurisdiction thus acquired.52 A decree removing a representative is not Ford v. Ford, 88 Wis. 122, 59 N. W. 464; 46 First Nat. Bank v. Towle, 118 Minn. 514, 137 N. W. 291; Corey v. Corey, 120 Minn. 304, 139 N. W. 509; Marks v. Coats, 37 Or. 609, 62 Pac. 488; In re McCluskey, 116 Me. 212, 100 Atl. 977. 47 First Nat. Bank v. Towle, 118 Minn. 514, 137 N. W. 291. 48 State v. Probate Court, 66 Minn. 246, 68 N. W. 1063; 11 A. & E. Ency, of Law (2 ed.) 820; 18 Cyc. 164. 49 Vukmirovich v. Nickolich, 123 Minn. 165, 168, 143 N. W. 255. 50 Corey v. Corey, 120 Minn. 304, 139 N. W. 509. 51 Balch v. Hooper, 32 Minn. 158, 20 N. W. 124. 52 Culver v. Hardenbergh, 37 Minn. 225, 33 N. W. 792. 53 res judicata in another action as to matters incidentally involved in the proceedings for removal. During an appeal from an order removing a representative a receiver was appointed to collect the rents and take charge of the property. The order appealed from was reversed and judgment to that effect was entered in the district court. Held, that entry of the judgment did not ipso facto discharge the receiver.54 A decree of the probate court having jurisdiction of the estate, discharging a representative, cannot be questioned collaterally, even though the decree states a reason for the discharge, which is not, under the statute, a cause for discharge.55 A representative should not be removed without cause shown upon due hearing and upon evidence other than the petition.56 A representative may be removed on the ground that he has become a non-resident. The fact that a representative is indebted to the estate is not a ground for removing him but is a matter for the accounting, 58 57 1143. Notice for removal-Statute-The probate court on its own motion may, and on petition of any person interested in the estate shall, cite the representative to appear and show cause why he should not be removed. Whenever such representative resides in the county, such citation shall be served upon him personally or by leaving a copy at his last usual place of abode with some person of suitable age and discretion then resident therein; when he resides out of the county and his residence is known, by mail; and when unknown, by publication.5o A representative cannot be summarily removed without notice to him of the time and place of hearing on the matter of his removal, unless his residence is unknown."" DISCHARGE OF REPRESENTATIVES 1144. Statutes-Whenever the probate court shall find, upon petition, that any executor, administrator, or guardian has fully executed his trust, and has paid over to the persons entitled thereto all money and other property in his hands as such, said court may enter an order finally discharging him and his bondsmen from further liability."1 Whenever an executor or administrator shall have fully complied with 53 Marvin v. Dutcher, 26 Minn. 391, 4 N. W. 685. 54 Ellis v. Warshauer, 92 Minn. 444, 100 N. W. 214. 55 Simpson v. Cook, 24 Minn. 180. 56 In re Bagnola's Estate, 178 Iowa 757, 154 N. W. 461, 160 N. W. 830; 11 A. & E. Ency. of Law (2 ed.) 816; 18 Cyc. 157; 26 C. J. 1121. 57 In re Rice's Estate, 158 Mich. 53, 122 N. W. 212. 58 In re Powers' Estate, 166 N. Y. S. 1007. 59 G. S. 1913, § 7234; Chadwick v. Dunham, 83 Minn. 366, 368, 86 N. W. 351; First Nat. Bank v. Towle, 118 Minn. 514, 523, 137 N. W. 291. 60 McCloskey v. Plantz, 76 Minn. 323, 79 N. W. 176. See In re Bagnola's Estate. 178 Iowa 757, 154 N. W. 461, 160 N. W. $30. 61 G. S. 1913, § 7399. all the terms and conditions of the final decree of distribution and of all other decrees and orders of the probate court appointing him, and shall have paid over to the distributees named in such final decree of distribution of the said court, all moneys and funds and property to them awarded by such final decree, and when such executor shall have in all other respects fully complied with the terms and conditions of said final decree, and have fully complied with all the orders and decrees of the said court, and when it shall appear to the court that the executor or administrator has paid over all moneys to the proper parties, and that he has in all things complied with the orders of the court and the terms of the final decree in said estate, and that he has in all things, well, faithfully and fully administered his trust as such executor or administrator, the court shall enter an order and decree fully discharging the said executor or administrator and the sureties on his bond from all further liability, and from all liability by reason of said trust and by reason of said administration.62 Prior to Laws 1903, c. 195, there was no statutory provision for an order discharging a representative and it was held that the final decree of distribution ipso facto discharged him. A discharge of one of two representatives on his sole petition has been held irregular but not void. The authority of a representative to collect assets continues until he is discharged."5 The order discharging a representative is the final order in the administration proceedings and terminates the jurisdiction of the probate court over the estate. So long as the order remains in force the court has no more jurisdiction over the estate or the property belonging to it than if there had never been any administration or attempt to institute one." A representative is not entitled to a discharge until it appears that he has in all things well, faithfully and fully administered his trust. An order of discharge is not subject to collateral attack for error or irregularity. It is not subject to collateral attack though it states a reason for the discharge which is not, under the statute, cause for discharge." An order of discharge is necessary to close the administration and to relieve the representative and his bondsmen of further liability. A discharge, at least if not vacated, bars an action against a representative and his bondsmen for breach of trust. A representative is not enti 68 63 62 G. S. 1913, § 7400. See 11 A. & E. Ency. of Law (2 ed.) 810; 18 Cyc. 145; 23 C. J. 1092; Woerner, Am. Law of Adm. (2 ed.) § 573; Church, Probate Law, 1423. 63 State v. Probate Court, 84 Minn. 289, 87 N. W. 783. 64 State v. Probate Court, 40 Minn. 296, 41 N. W. 1033. 65 Lowry v. Tilleny, 31 Minn. 500, 18 N. W. 452. 84 70 67 69 66 State v. Probate Court, 33 Minn. 94, 22 N. W. 10. 07 Vukmirovich v. Nickolich, 123 Minn. 165, 143 N. W. 255. 68 Simpson v. Cook, 24 Minn. 180; Winters v. Ellefson, 128 Minn. 3, 150 N. W. 171. 69 Simpson v. Cook, 24 Minn. 180. 70 In re Scheffer's Estate, 58 Minn. 29. 59 N. W. 956; Winters v. Ellefson, 128 Minn. 3, 150 N. W. 171; Veysey v. Vey 71 tled to a discharge unless it appears that he has paid all taxes on the estate, including all inheritance taxes. A representative may be discharged though the time for appealing from the final decree has not expired.72 An order allowing the account of an executor held not an order closing the estate, discharging an executor and changing his possession from that of executor to that of testamentary trustee.78 An order of discharge obtained by the fraud of the administrator does not relieve the sureties on his bond from liability, and where the discharge is set aside the sureties cannot rely on the discharge, for the discharge only operated to prevent an action on the bond pending equitable proceedings to vacate it. The sureties on an administrator's bond are in privity with the administrator, and the fact that they were not served with notice of proceedings to vacate the order approving the final report of the administrator does not affect their liability on the order being vacated, since they are presumed to have knowledge of all orders regularly entered in the matter of settling the estate."* SPECIAL ADMINISTRATORS 1145. Definition-A special administrator is a representative of a decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed.75 76 1146. When appointed-No appeal from appointment-StatuteWhenever the appointment of an executor or administrator is necessarily delayed, or for any reason the probate judge determines that it is necessary or expedient, he may, with or without notice, appoint a special administrator, to take charge of the estate so long as such judge deems it necessary, and no appeal shall be allowed from the appointment of such administrator. It conclusively appeared that no petition was presented to the probate court for the appointment of a special administrator. Such petition is jurisdictional, and, without it, the probate court has no jurisdiction to appoint such administrator, to approve his bond or to issue letters of administration. Such orders are nullities, and a settlement made by the special administrator so attempted to be appointed, in no way binds the next of kin of deceased dependent upon him for support." There can be no special administration while sey, 86 Wash. 553, 151 Pac. 39; 11 A. & E. Ency. of Law (2 ed.) 896; 18 Cyc. 1262; 23 C. J. 1093. 71 G. S. 1913, §§ 2274, 2276, 2290, 7390; State v. Probate Court, 112 Minn. 279, 128 N. W. 18; Winters v. Ellefson, 128 Minn. 3, 150 N. W. 171. 72 Nason v. Superior Court (Cal.) 179 Pac. 454. 73 In re Scheffer's Estate, 58 Minn. 29, 59 N. W. 956. 74 Tucker v. Stewart, 147 Iowa 294, 126 N. E. 183. 75 Jones v. Minnesota Transfer Ry. Co., 108 Minn. 129, 121 N. W. 606. 76 G. S. 1913, § 7293. See Church, Probate Law, 460; 24 C. J. 1169. 77 Bombolis v. Minneapolis & St. Louis R. Co., 128 Minn. 112, 150 N. W. 385. |