to restrain it. A wife of the vendee is within the protection of the statute.11

1015. Contracts for conveyance of land in Canada-Statute-There is a special statute for the enforcement of contracts for the conveyance of lands in the Dominion of Canada.42

1016. Curative act-Any decree for conveyance of real estate under contract, by an administrator or executor, made by any probate court of this state, in the matter of the estate of a decedent, when the order for hearing the petition for such decree was published the requisite number of times in a legal and proper newspaper, but the date of such hearing was fixed in said order and the hearing held on a date less than three weeks from the first publication of such order, and such decree issued; and which decree or a certified copy thereof, has been of record in the office of the register of deeds of the county where the real estate thereby affected was at the time of making such record, or is situate, for a period of not less than ten years prior to the passage of this act, be and the same hereby is legalized and made valid, and given the same force and effect as if proper notice had been given and such hearing had been held at the proper time. Nothing herein contained shall be construed to apply to any action or proceeding in which the validity of such decree is involved.43

ACCOUNTING

1017. Jurisdiction-The jurisdiction of the probate court over the accounting of representatives is exclusive. The court of their appointment has exclusive jurisdiction to settle the accounts of representatives and to determine their compensation. The probate court has exclusive jurisdiction of the matter of settling the account of a representative, and also to correct errors in its order of settlement, or to set it aside for mistake or fraud. One who obtains possession of the personal property of a decedent as administrator of his estate may be required by the probate court to account for and deliver to the widow of decedent the portion of such property she is entitled to select as her

46

41 Reed v. Whitney, 7 Gray (Mass.) 533.

42 Laws 1919, c. 234.

43 Laws 1917, c. 457.

44 Brandes v. Carpenter, 68 Minn. 388, 391, 71 N. W. 402; Starkey v. Sweeney, 71 Minn. 241, 244, 73 N. W. 859; Betcher v. Betcher, 83 Minn. 215, 86 N. W. 1; Beaulieu v. Ain-E. Waush, 126 Minn. 321, 148 N. W. 282; Pierce v. Maetzold, 126 Minn. 445, 148 N. W. 302; Ellis v. Warshauer, 92 Minn. 444, 100 N. W. 214;

Fischer v. Hintz, 145 Minn. 161, 176 N. W. 177; Boales v. Ferguson, 55 Neb. 565, 76 N. W. 18; Brooks v. Hargrave, 179 Mich. 136, 146 N. W. 325; Allen v. Hunt, 213 Mass. 276, 100 N. E. 552; 11 A. & E. Ency, of Law (2 ed.) 1190; 18 Cyc. 1115; 24 C. J. 940; Woerner, Am. Law of Adm. (2 ed.) 503.

45 Magruder v. Drury, 235 U. S. 106; 24 C. J. 940. See § 1206.

46 Pierce v. Maetzold, 126 Minn. 445, 148 N. W. 302.

statutory allowance. An action by the widow to recover such property, or its value, cannot be brought in the first instance in the district court. The original jurisdiction of the probate court is exclusive.47 Representatives cannot be forced by an action in the district court, either at law or in equity, to render accounts or deliver assets of the estate until their accounts are first settled in the probate court.48 A testator, up to the time of his death, was engaged in business in partnership with one of the two executors named in the will. After the testator's death such executor continued the business as the surviving partner. He then entered into an agreement with his co-executor, whereby he purchased the interest of the estate at a certain sum, but no money was paid to the co-executor. Both executors were discharged without having rendered an account, leaving the estate unadministered. From time to time. money was paid by such surviving partner to the sole heirs of the testator. In an action against such surviving partner by a subsequently appointed administrator de bonis non, to compel an accounting, held, that such surviving partner was not a debtor of the estate at the death of the testator, and that his relation to the estate still remained that of executor, and the jurisdiction of the probate court to compel an accounting was exclusive, and such jurisdiction was not lost by the fact that the executor was discharged, leaving the estate unadministered. The district court has no jurisdiction of the subject-matter.49 A former administrator received funds of the estate, which he failed to account for within the time allowed by the order of the probate court, and which upon due demand he refused to pay over to his successor, as administrator de bonis non. In an action by the administrator de bonis non against the former administrator and the sureties upon his bond, held, that such failure to account to the probate court within the time limited, and to pay the sum received by him as administrator to his successor, amounted to a default in the bond, which was conditioned that he should administrate the estate according to law, render a just and true account of his administration when required by the court, and perform all orders and decrees of the court. The district court has jurisdiction to entertain the action upon the bond to enforce the liability, and prima facie the amount of the liability of the sureties is the amount received by the principal, not to exceed the face of the bond.50 The probate court has no jurisdiction over the accounting of a testamentary trustee, but it has jurisdiction over the accounting of an executor until there is an order changing his possession from that of an executor to that of a trustee

47 Fischer v. Hintz, 145 Minn. 161, 176 N. W. 177.

48 Green v. Gaskill, 175 Mass. 265, 56 N. E. 560; Foster v. Bailey, 157 Mass. 160, 31 N. E. 771; Rhines v. Wentworth,

209 Mass. 585, 95 N. E. 951; Allen v. Hunt, 213 Mass. 276, 100 N. E. 552.

49 Betcher v. Betcher, 83 Minn. 215, 86 N. W. 1.

50 McAlpine v. Kratka, 98 Minn. 151, 107 N. W. 961.

51

and he is discharged as executor. Under former statutes it was held that after the estate had been settled and assigned, and while the final decree of distribution remained unreversed and unmodified, the probate court had no jurisdiction to entertain a petition to issue a citation to the administrator requiring him to further account for the property belonging to the estate which was in his possession, or came into his possession.52 An equitable action may be maintained in the district court by an executor against a co-executor to determine the amount of a disputed claim held by the estate against such co-executor, arising on contract entered into with the testator in his lifetime, and due at the time of his death, when the co-executor disputes the amount and refuses to pay until such amount is ascertained, and in such action an accounting may be had with reference to such claim.53 When justice requires it the district court may stay proceedings in an action therein, pending the settlement of an account in the district court.54 Representatives who receive money in settlement of a cause of action for the wrongful death of a decedent are officers of the district court and may be required to account for and distribute the fund in accordance with the rules of that court. In an action on a bond of a representative in the district court for the nonpayment of a claim allowed in the probate court, where there were other claims unpaid, and the assets were insufficient to pay all the claims in full, held, that the defendant was entitled to an accounting of the assets of the estate in order to determine the pro rata share of the claimants. 56 Where all the statutory fees allowed executors have been received from the estate and retained by one of several co-executors, equity has jurisdiction of a suit by the others against him for an accounting.57 An action at law will not lie in the district court for an alleged conversion of the residue of the personal property of the estate by an executor as a residuary legatee by transferring it to himself, if it appears that the validity of the transfer is involved in an accounting pending in the probate court. 58 If there is danger that before an account is passed upon the property for which the representative is accountable may be wasted or converted by him an interested party may have a bill in equity for its preservation, leaving the final accounting in the probate court. Though the district court has no jurisdiction as a court

55

59

51 In re Scheffer's Estate, 58 Minn. 29, 59 N. W. 956.

52 State v. Probate Court, 84 Minn. 289, 87 N. W. 783. See G. S. 1913, §§ 7399, 7400, enacted since this decision.

53 Peterson v. Vanderburgh, 77 Minn. 218, 79 N. W. 828. See Betcher v. Betcher, 83 Minn. 215, 218, 86 N. W. 1.

54 McAlpine v. Kratka, 98 Minn. 151, 107 N. W. 961.

55 State v. District Court, 114 Minn.

364, 131 N. W. 381. See Vukmirovich v. Nickolich, 123 Minn. 165, 143 N. W. 255. 56 Ames v. Slater, 27 Minn. 70, 6 N. W. 418.

57 Speirs v. Wisner, 88 Mich. 614, 50 N. W. 654.

58 Rhines v. Wentworth, 209 Mass. 585, 95 N. E. 951.

59 Holmes v. Holmes, 194 Mass. 552, 80 N. E. 614; Rhines v. Wentworth, 209 Mass. 585, 95 N. E. 951.

of equity to compel a probate accounting, yet, where a trust fund created by a will has been diverted from the possession and control of the trustee and has passed into the hands of a devisee of one of the cestuis que trust, parties claiming the whole or parts of the fund as against each other may come into equity to secure the preservation of the fund and to have their respective rights determined, leaving the final accounting to be had and the net amount of the trust fund to be determined in the probate court. If there is an original and ancillary administration the place for final accounting and settlement is in the forum of the original administration."1

60

62

1018. Duty to account-Times-Statute-Every executor and administrator shall render an account of his administration within the time allowed for the settlement of the estate, and at such other times as the court may require, until the estate is wholly settled. It was held, prior to Laws 1903, c. 195, that after an estate had been settled and assigned and while the final decree of distribution remained unreversed and unmodified, the probate court had no jurisdiction to entertain a petition to issue a citation to a representative requiring him to further account for the property belonging to the estate which was in his possession or had come into his possession." Though notice has been given of final settlement of an estate and orders are made thereon, determining the heirs and fixing their interests and adjusting certain uncontested items of an account, orders so adjusting items of account will not be regarded as final, if the representative is not discharged, and additional collections and disbursements are required and a further account necessary."

65

1019. Keeping accounts-It is the duty of a representative to keep full and accurate accounts of all his transactions in relation to the estate and to be prepared at all times to exhibit them to the probate court." 1020. Scope and nature-In general-An accounting includes the determination of how much has been received by the representative, how much paid out and for what, and the amount of the balance due from the representative. He should be charged with what he has received as representative and credited with what he has paid out to creditors and for expenses of administration. The primary purpose of the accounting

66

60 Holmes v. Holmes, 194 Mass. 552, 80 N. E. 614.

61 In re Stevens' Estate, 171 Mich. 486, 137 N. W. 627. See § 1206.

62 G. S. 1913, § 7383. See 19 Ency. Pl. & Pr. 1021; 11 A. & E. Ency. of Law (2 ed.) 1196; 24 C. J. 924; 18 Cyc. 1104; 11 R. C. L. 175; Woerner, Am. Law of Adm. (2 ed.) § 501.

63 State v. Probate Court, 84 Minn. 289, 87 N. W. 783. See Lowry v. Tilleny, 31 Minn. 500, 18 N. W. 452; Betcher v.

Betcher, 83 Minn. 215, 86 N. W. 1; 18
Cyc. 1119.

64 In re Wilson's Estate, 98 Neb. 852, 154 N. W. 717.

65 St. Paul Trust Co. v. Kittson, 62 Minn. 408, 65 N. W. 74; Lawson v. Burgee, 131 Md. 436, 103 Atl. 516; 11 A. & E. Ency. of Law (2 ed.) 1181; 18 Cyc. 235, 1104; 24 C. J. 924; 11 R. C. L. 175.

66 Allen v. Hunt, 213 Mass. 276, 100 N. E. 552. See 24 C. J. 935.

67

is to pass on the receipts and disbursements of the representative and determine the amount due from him to the estate. The determination of the court is not binding on third parties as to the facts upon which it is based. As a general rule an accounting covers only such property as constitutes assets of the estate. If the representative has received property to which he is not entitled in his representative capacity he cannot be compelled to account therefor in the probate court. The remedy of the owner is in the district court.08 A representative is accountable for the personal property of the estate only in his representative capacity. The accounting extends to all transactions of the representative in relation to the estate, proper and improper, including profits from the unauthorized use of funds and property converted by the representative.70

1021. Distribution of estate not involved-The final account should not include credits for distribution of the estate, including the payment of legacies. The accounting for the distribution of the estate is a matter for consideration on the final hearing for a discharge." Though it is irregular for a representative to make distribution before a final decree, still, if he does so, and credits himself therefor in his final account, the credits should be allowed on the final accounting, if the distributees are known and their shares undisputed and no objection is made by any one, or if objections are plainly groundless and are overruled.72

1022. Pendency of action against representative-There should be no final settlement pending an action against the representative, at least in the absence of bad faith or collusion.78

1023. Executor not qualifying-An executor named in a will who does not qualify cannot be required to account.74

1024. Application of statutes to special administrators-The statutes relating to accounting apply to special administrators.75

1025. Accounting of executor when will set aside-If the probate of a will is set aside the executor thereof should not be required to deliver

67 Marvin v. Dutcher, 26 Minn. 391, 4 N. W. 685.

68 11 A. & E. Ency. of Law (2 ed.) 1198; 18 Cyc. 1114; 24 C. J. 936; 11 R. C. L. 178; 19 Ann. Cas. 560.

69 Fischer v. Hintz, 145 Minn. 161, 176 N. W. 177.

70 Auguisola v. Armaz, 51 Cal. 435, 438. See § 1056.

71 In re Willey's Estate, 140 Cal. 238, 73 Pac. 998; In re Robins' Estate, 180 Pa. St. 630; 18 Cyc. 1176.

72 Palmer v. Whitney, 166 Mass. 306,

44 N. E. 229; Griffin v. Warburton, 23 Wash. 231, 62 Pac. 765.

73 In re Kittson's Estate, 45 Minn. 197, 48 N. W. 419; Whitney v. Pinney, 51 Minn. 146, 53 N. W. 198. See Hallett v. Lathrop, 20 Colo. App. 212, 77 Pac. 1096 (pendency of action by attorney for his fees held no reason for not settling account); 18 Cyc. 1115.

74 Wever v. Marvin, 14 Barb. (N. Y.) 376.

75 French v. Superior Court, 3 Cal. App. 304, 85 Pac. 133. See 24 C. J. 932.