Alaska sentinel., 1905-11-30
THE WRANGELL MILL
Receivership of Wilson and Syls
 vester Estates Decided

An important decision was rendered last week by Judge Gunnison in the case of l. H. Wakefield, as administrator de 5onis non of the estate of Rufus Sylvester deceased. ps Mary A. Wilson and T. c. McHugh, admin istratrix and administrator of the estate of Thomas H. Wilson, deceased, being an ac- ton for an accounting by the defendants aud the appointment of receiver of the property of Rufus Sylvester
 The case was complicated involving many questions of laws, among which is the juris- diction of the probate court to discharge an administrator without statutory notice be- ing given, the right of Mrs. Wilson and Me- Hugh to act as administrators by virtue of a special appointment as such by the probate court, the necessity of the appointment of receiver to take charge of the property of the estates to be administered upon, as well as many questions of fact growing out of several suits pending between the parties in interests.
 The decision gave an exhaustive review of the facts and questions involved in the case With reference as to the right of the probate court to discharge an executor without mo- tice, and the validity of the order discharge ing Samuel Sylvester as executor, the count says:
 "The plaintiff in this case introduced an order which purported 10 remove Samuel | Sylvester as executor, and rested upon that, relying upon the presumption of regularity. The order, itself fails to recite iurisdictional facts. There is no evidence before the court that the proceeding was properly initiated by petition or that the court obtained juris- diction of the person of the eXecutor, who was alleged to have been a nonresident, by a proper service of citation upon him, either in person or by publication or posting. $ $ The law does not expect nor require an ex- | ecutor to remain a resident of particular precinct of the District. If he shall be res- ldent of a particular precinct of the District, that is sufficient; and certainly the probate court cannot, without notifying him, deprive him of the right which he had heretofore had and to which he is entitled. i An order discharging or reYoking an executor, does not revoke the letters.
 | "Ihe Code, by express language, (E 1851 | requires that if the court finds the charge | to be true, it shall make an order (1st) re- moving such administrator, and (2ud) re- yoke his letters The order of the probate | court ill this instance does not conform to l Sylvester of authority or to cause vacancy. # as # And, therefore, after the removal of l Robert Reid as eXecutor a vacancy existed which would warrant the probate court in appointing an administrator de bOnis non with will annexed. The order appointing MT. Wakefield was void, since where remoy- al of an executor and the revocation of his letters were voi,A, q second grant is void - -a | Therefore, since the appointment Of Wake | field as administrator de b0niS non was void, | he was without outhority to commence this action, and it must be dismissed"
 With relation to the appointment and continuance of a receiver, the court holds:
 "It is patent from the evidence in this | case, that great deal of personal feeling has entered into it, and that there is anything but harmony between the plaintiff and these defendants. This feeling between the par ties might perhaps be reason for the con- l tinuance of the receivership. But receiver ship is an extraordinary remedy and of a harsh nature. It is frequently denominated drastic measure, and it follows necessarily and logically that the proceedings cannot be successfully invoked when another adequate remedy exists, and therefore the power to appoint a receiver should be exercised with circumspection and caution, aud only in cases when it appears that without it, the complainant will sustain irreparable loss, and when it alone will prevent manifest wrong, imminently impending, and only in cases of apparent necessity; (Beach on Rec. pp. 65-66). The power lies in the discretion of the court, and is neither arbitrary nor ab- solute, and it is established rule that a receiver will not be appointed if there be any other safe and expedient remedy. If such remedy exists it must be pursued.
 That there is adequate remedy in the probate court cannot be denied. The Alas ka Code provides the means by which the probate court may compel the administra- tors to account to any party interested. It has power to direct the sale of property, and in fact the very relief which the plaintiff asks in his complaing in this suit can be obtained by him in the probate court located at the point where the property is situated. It can be obtained as speedily and as effica- ciously as this court, and there is the very reason why matters of this kind should be settled by congress for that purpose instead of bringing it to different tribunal. Nei- ther the necessity nor the expediency fol. the continuance of this receivership has been established. r Let an order be issued directing the tenn porary reseiver to forthwith settle his ac- counts, discharging him from further duties as such receiver, and directing him to turn the property in his possession back to the respective officials.