Idaho semi-weekly world. [volume] (Idaho City, Idaho Territory) 1875-1908, 1882-02-28

Again: tits urged that the inqui-
rles were not germane to the matters
complained Of by the administrator
with the will annexed. That COM
plant was that the petitioner had in
his possession inter. ala. bank book
which disclosed that said estate is en-
titled to $4,000, and more on deposit
IN the Hibernian Bank, at San Fran
cisco, which he refused to deliver up.
This proceeding was based on sections
ll9 and l20 of the Probate Practice
Act. It is by these sections provided
| that,
IF any executor or administrator, heir, legatee
creditor or other person interested in the estate
any deceased person shal complain to the probate
Judge. oath. that any person is suspected to
| have concealed, embezzled. conveyed away, dis
posed OF any moneys. goods or chattels Of the de-
ceased; or that he has in his possession knowl-
edge any deeds, conveyances, bonds, contracts,
| or other writings which contain evidence of, or
tend to disclose the right title, interest claim of
the deceased TO any real or personal estate. any
/ claim demand, u the said iudpe NAV
cite such person to appear before the probate
court and may examine him oath, upon the
matter of such complaint. = II the person
so cited refuse to appear and submit TO such ex-
animation, or to answer such interrogatories as
may be put to him or her, touching the matter OF
such complaint, the court may, by warrant commit
him or her to the county Jail, there remain in
close custody until he or she shall submit to the
order of the court, or be discharged according to
| law"
The question of the possession Of
the book, which is certainly included
in the articles mentioned in section
ll9, was the very question to be tried
1t was not proceeding for the re-
covery of the book, but for the discov-
cry OF it. The mode of it's recovery is
provided by the latter part of section
l20.
And although the petitioner had an
swered that the book was under his
control but not in his possession, it
will he noticed that he had previously
answered that it was in his possession.
The Court had right to be informed
where the book was, in order to deter
mine which Of his answers was true
The fact of possession can hardly be
considered probative fact, indeed it
is an ultimate fact very nearly APP
preaching conclusion of law, and the
Court was not concluded by any an
swer either that he had or had not the
bouk in his possession. 1t was proper
{ for it to know where it was both in
, order that it might determine the fact
of possession for ITSELF and that the
administrator might be directed Alright
in the subsequent proceedings for its
recovery.
; 1t is claimed, however, that the com
plant and the answers made by the peti-
TONER, showed that the money was on de-
: posit in San Francisco, and without the
Jurisdiction of this Territory and OF the
Probate Court of Boise county, and there.
fore that there was no power in the Court
to inquire concerning the book. While
: we have not the disposition to enter into
the question of the relative rights OF prln
cipal and ancillary administrators, or OF
what we conceive to be the law relating to
that subject, and may admit, for the pur
poses of this proceeding that it is the law
: in California that estate found there upon
the decease OF citizen OF another state OF
a territory, and belonging to him, must be
administered upon and distributed under
the laws of that state, without in any
manner, recognizing principal or home
: executor or administrator; ignoring, If you
please, the well-settled rules and princi
, ples OF comfy that J ave existed between
the states and between state and terri
tory ever since the formation of the gen
: eral Government. Still it cannot be sue
] cessfully claimed that a bank book-aI
assignable chose in action-an evidence
of Indebtedness, kept in the hand writing
: of the officers of the bank, is aot one o.
5 the assets of the estate, or that, if it b(
within the territorial jurisdiction OF tht
a Court, it is not the sworn duty OF the ad
. ministrator to reduce it to possession, OF
at least to do all in his power, under the
! law, to that end. But it is urged that un
! der the provisions of section 6l7 and 62(
of the code of Civil procedure the maxim
um punishment is one hundred dollars
fine and one days Imprisonment.
That part of section GIT which it i!
claimed is applicable to this question is al
follows:
"A Probate Judge or Justice may punish as TO
contempt persons guilty of the following acts an'
pisobedence to a subpoena duly served, or re
fusing to lie sworn or to answer as witness.
Section $40, is as follows:
1.-The Judge or Justice may punish for contemps
by fine or Imprisonment, or both; such hne not 70
exceed. in AMI case, one hundred dollars, and sucl
imprisoAment one day..
These sections and provisions, however
. have no reference whatever 10 the Probate
, Court when exercising its jurisdiction un
+ der the Probate practice act, but only
when discharging It's duties In criminal