I. The various provisions of the statute all indicate that an office was created, with distinct duties attendant upon it. If the proposition of the appellant be true, the Legislature would merely have enacted that a Public Administrator shall be elected in each county, prescribing his term; then the general statutes relative to the estates of deceased persons would point out his class, and regulate all his duties; but it goes further, and creates an office as distinct and necessary to the functions of government as that of District Attorney, County Treasurer and others.
If the duties of the Public Administrator appertain to an office, as contended for, then we submit that the generalrule governing the rights and duties of incumbents in office must prevail in this as in other cases, viz.: that as to the incumbent personally, they are dependent upon his tenure of office, commencing and ending with it.
The separation of the incumbent from office is recognized in the case of The People v. Langden, 8 Cal. 1.
The condition of his bond is, that he will account for and pay over all moneys and property that may come into his hands, " as such Public Administrator ." Now, if after he ceases to be Public Administrator and becomes a private one, he receives money due the estate and misapplies it, his sureties would not be liable.
II. The appellant urges that the Public Administrator did not hold the estate of Deck by virtue of his office, but by virtue of the letters granted to him. This is not altogether true. It is too broadly stated. He is entitled to hold both by virtue of his office and the letters. He could not demand the letters unless he was Public Administrator, nor could he hold the estate unless in the first instance acquired by letters.
The case of Beckett v. Selover merely decides that there must be a judicial grant of administrationin each case, in the first instance; but it does not decide that the Public Administrator thereby becomes invested with a personal title which continues until the estate is closed. The granting of letters is only a statutory mode of bringing the estate within the control of the office; and whoever at the time is the incumbent performs the duties of the office. Most of the State and County officers take property into their possession by means of certain legal forms: for instance, the mode in which County Treasurers acquire school moneys from the State. (Laws of 1855, p. 230.)
The office always continues, though the incumbent may be different. If the title of a succeeding Public Administrator is questioned, he is only obliged to exhibit the grant of letters to his predecessors and his own commission to make out a prima facie case.
The learned counsel for the appellant says in his brief: " Now if letters be granted to a creditor, and he immediately pays his own debt and thus ceases to be a creditor, does he lose his right to administer, and could another creditor come in and demand a revocation of his letters, and an issuance of letters to himself? and yet this wouldbe strictly analogous to the claim set up here."
In the first place, all the persons authorized by the statute to receive letters except the Public Administrator, are so authorized because of a personal connection with or interest in the estate.
Secondly. Under our statutory system, a creditor cannot pay his debt until the estate is wound up, and a decree of distribution entered; and the contingency suggested could not arise.
III. It is urged that the administration does not pass to the successor in office because of the absence of an express provision to that effect.
If the theory urged above be correct, viz: that all property, papers, money, etc., attend the office and not the incumbent, then no enactment is necessary; such seems to have been the Legislative understanding. It will be seen that no such provision is made in reference to the County Clerks, (Wood's Digest, p. 88) District Attorney, (p. 64) Coroner, (p. 112) Assessor, (p. 55) Treasurer, (p. 712) Clerk of Supreme Court, nor Superintendent of Public Instruction.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BALDWIN, Judge
This case comes here upon a single point made by an agreed state of facts; this is whether the Public Administrator of San Francisco County, having administered upon an estate, continues such administration after the expiration of his term of office, or whether the administration follows the office into the hands of the succeeding incumbent, who may sue without obtaining a grant of administration on the particular estate. This question depends upon the construction of our statutes. The first Act upon the subject of Public Administrators was passed in 1850. (Acts of 1850, p. 403, ch. 14, section 304.) This Act provided that the Probate Court might, by an order entered on its minutes, appoint a Public Administrator for the County, who should hold office for one year, and until his successor was qualified. This Act defines the rights and duties of this class of public officers. Section 312 provides that, if at any time, letters testamentary or of administration be regularly granted on such estate to any other person, the Public Administrator shall, under the order of the Probate Court, account for, pay and deliver to the Executor or Administrator thus appointed, all the money, property, debts, papers, or other estate of the person deceased. Section 317 provides that the Probate Court may at any time order the Public Administrator to account for, and deliver all the money and property of any estate in his hands to the heirs or to the Executor or Administrator regularly appointed.
It will be observed that nothing is said in this statute--which is the basis of all the legislation on the subject--about the handing over of papers, etc., to the succeeding Public Administrator.
The next Act is that of April, 1851. (Acts of 1851, p. 206.) The first section of this Act provides that there shall be elected in and for each of the organized counties in this State a Public Administrator, who shall continue in office until his successor is qualified. By section 6 it is provided that it shall be the duty of the present Public Administrators each to account for, pay over and deliver to his successor, within twenty days after he shall have been qualified, all moneys, property, etc., which may have come into his possession as such Administrator, or be held by him by virtue of his office. Section 7 prescribes a penalty for non-compliance with section 6, against those now holding the office. Section 305 of Act of May 1st, 1851, (Acts of 1851, p. 418) provides that the Public Administrator shall make a perfect inventory of all such estate taken into his possession, and administer and account for the same as near as circumstances will permit, according to the law prescribing the duties of administration, subject to the control and direction of the Probate Court.
Section 52 of the general Act concerning estates of deceased persons (Acts of 1851, p. 434) prescribes the persons to whom administration shall be entitled in their order. 1st. To the surviving husband or wife. * * 8th. To the Public Administrator. 9th. Creditors. 10th. Any person or persons legally competent. Art. 2349, section 281 (Wood's Dig. 419) provides for the removal of any Executor or Administrator, etc.
In Beckett v. Selover, (7 Cal. 216) this Court held that the Public Administrator is not entitled to administer upon every estate, and there must be a judicial grant of administration to him in each particular case, of which his official commission is not proof; and he must show the grant of administration like every other Administrator.
It will be seen, from this review of the statutes, that it is nowhere provided that the Public Administrator shall hand over to the succeeding incumbent of the office the papers, or that the latter succeeds to the unfinished business of estates. By virtue of his office, it is true he is entitled to a grant of administration, as by virtue of his debt a creditor is entitled, but it does not follow from this that the grant is limited in time or by the existence of this relation. The statutes seem ex industria to exclude this idea. In one provision, the duty is imposed expressly, under a penalty, upon the then existing Public Administrators, to hand over the papers, etc.; and by other sections it is incumbent upon them to deliver the property, etc., to the Administrator regularly appointed.
It may have been the intention of the Legislature to confine the entire administration of an estate, once granted to a Public Administrator, to the person to whom the letters are granted; since it might lead to great confusion, and expense, and trouble, in shifting the administration to as many different hands as there should be Public Administrators. In this case a grant of administration was made to Flower, former Public Administrator; and no grant was made to Rogers, the plaintiff here. This was necessary, as held in Beckett v. Selover, to give him any title to the estate. The mere handing over the papers by Flower to him did not vest him with the title to sue in this case. The main argument urged by the respondent against this view is, that as these powers and duties of the Public Administrator exist by virtue of his office, they must necessarily expire with the office. But this depends upon the nature of the office, and upon the Act creating it. At common law, a Sheriff was, after the expiration of his term, from a principle of convenience, considered in some respects as an officer; he could finish some kinds of business which he had begun. And so it has been held in other States, that an Executor or Administrator, after his resignation or removal, is to be treated, for purposes of settlement, remedies, etc., as Administrators in office. We do not see that estates would not be as safe in the hands of the first incumbent, as in those of his successor; while many considerations of convenience and expedition in the settlement of estates are involved in the continuing of the management of them in the hands to which they were first committed. At least, it would seem to be clear that the grant of administration must continue the authority and power of the grantee until it is directly set aside, or indirectly revoked by another appointment.
Upon the agreed facts, therefore, we think the law is for the defendant.
Judgment reversed.