The record-union., 1898-06-25

icase the petition was filed by the ex-
!ecutor, alleging that a certain person
had concealed property belonging to
the estate, and praying for the cx-
animation Of such person. The lues-
ton OF whether or not the administra-
tor or executor may himself be SUBJ
l5ected to an examination under the pro-
visions of these sections has never
been decided by the Supreme Court
of this State
An examination of the statutes Of
other States, however, discloses that
many of them have adopted SINH
lar provisions to those contained in
Sections 1859 and 146O of our Code of
Civil Procedure Most of these stat
utes, however, in express terms pro-
wide that they shall not apply to ex-
ecutors or administrators. The Ohio
istatute is very similar to the provis-
ions of our code. and Section 6O0o pro-
vides that upon complaint made by
the executor, administrator, creditor,
Idevisee, legatee, heir or other person
interested in the estate against any per-
son or persons suspected of having con-
tcealed embezzled or conveyed away
any of the moneys, goods, chatteis,
things in action, or effects of such de-
lceased, the Probate Court shall cite the
lperson or persons suspected to appear
and be examined on oath touching the
matters of the complaint"
Succeeding sections of the Ohio stat
ute provide for the punishment for
failure to respond to the citation, or
for failure to answer questions when
<l,o ,,,rf
| shall find, from the examination, that
the person examined has property be-
longing to the estate, judgment shall
be entered therefor in favor of the eX-
lecutor or administrator of said estate.
| 1t will be noticed that the only differ
lence between the Ohio statute and the
statute of California upon the same
subject is that in our State the court
/ is directed to compel the person exam
ined to disclose the information or
knowledge of the property to the eX-
ecutor, while under the Ohio statute
the court is directed to enter a judg-
ment in favor of the executor for the
property.
The Supreme Court of Ohio, in the
case of Meinzer VS.. Bevington (42 Ohio
st. Rep, page $3.50, in passing upon
said statute, has held that it is not ap-
plicable to an administrator or ex-
|ecutor. In that case one of the heirs
at law of the deceased filed her petit
tion in the Probate Court of Crawford
County, wherein it was alleged that
the administrator was guilty of "em-
bezzling, concealing, etc." property of
the estate. and prayed for his examina-
ton concerning the same. The Pro-
bate Court examined the administrator
and Immediately rendered judgment
against him for several thousand dol
lars and considerable personal prop
erty.
The administrator appealed from the
order and judgment of the Probate
Court, and the Supreme Court, after
stating that the only question involved
in the proceeding was whether or not
the court had the power to make the
order asked for, at the instance Of one
interested in the estate, against the ad-
ministrator of the estate, said:
'These provisions are supplementary
to the general statutes and the law gov
erning the settlement of estates. With
out them there was ample provision
for compelling an executor or admin
istrator to faithfully perform the duties
of his trust. They We're intended to
furnish a speedy and summary rem
ledy in favor of the executor or ad-
|ministrator, against any person or per-
sons charged with having concealed,
embeZZled or conveyed away any Of
the assets of the estate.
'The complaint may be made by the
executor or administrator, or by any
person interested in the estate, bu. the
judgment must. in all cases, be in ia
nj tho or o6y in;S Sfrof for
V He alone is authorized to pro-
CMeinzer VS.. Bevington, ~ Ohio st.
Rep, 325)
The same statement might well be
made with reference to the laws of
this State upon the same subject. There
is ample authority in other provisions
of the Code of Civil Procedure author
izing and empowering the court on
its own motion or at the instance Of
parties at interest, to examine the ex-
ecutor, and if the facts disclosed Justify
the same remove him from his trust.
1t is the opinion of the court that
the petition before us contains a suf1i-
Fclent statement of fact, other than the
facts stated in paragraph thereof to
authorize the court to investigate the
action and conduct of the administra-
tor under the authority conferred upon
the court by Section 1886 ct seq.. C. c.
p. The provisions of paragraph 8 of
said petition are, however, unnecessary
and redundant, unless Sections 1859
and 1850 authorize an examination of
the administrator. AS before stated. I
do not think it was the intention of
the law-mahing power that said last
named sections should apply to cases
wherein the administrator or executor
was suspected of concealing the prop
erty of the estate
The motion to strike out paragraph
) of the petition is therefore granted.
with permission to the respondent to
answer within five days, if he may be
so advised.
JOSEPH w. HUGHES,
Judge of the Superior Court.