Opinion
No. 3182.
Decided October 1, 1940.
Under P. L., c. 299, ss. 20-22 a special administrator appointed by the Probate Court is only a temporary custodian of the estate; and, without special authorization he cannot take steps to establish the decedent's will.
PROBATE APPEAL, from a decree allowing the final account of a special administrator of the defendant estate. The items in the account to which the appellant objects are for the expenses, counsel fees and disbursements sustained in an unsuccessful attempt to probate an instrument purporting to be the last will and testament of Charles Baker Ford.
It appears that the decedent died on May 22, 1934, leaving an instrument in the form of a will in which his stepmother, Kari L. Ford, was named executrix and sole legatee. On June 5, 1934, upon the petition of Kari, a special administrator of the decedent's estate was appointed by the Probate Court under the provisions of section 20, chapter 299 of the Public Laws of 1926. In this petition it is recited "that there is delay in determining the final grant of administration upon this estate by reason of objection to the allowance of the will by next of kin and that the interests of said estate require the appointment of a special administrator." The appointment of the special administrator was in the usual form directing him to return an inventory of the estate of the deceased, to care for and preserve his property and effects, and to do all other sets which he may be directed to perform by the Judge of Probate or the Superior Court.
The instrument purporting to be the will of the decedent was allowed by the Probate Court, but, upon appeal to the Superior Court and trial de novo by a jury, it was disallowed on the ground that it was procured by the undue influence of Kari. Upon appeal to this court, the verdict of the jury was sustained. Ford v. Ford, 89 N.H. 292.
From the docket entries it appears that the counsel for whose fees and expenses the special administrator seeks to be discharged represented Kari and that she was the person in actual control of the litigation over the will and for whose sole benefit that litigation was conducted.
The Probate Court, at the hearing upon the special administrator's account, found that the services of counsel were rendered in good faith, that the attempt to establish the will was reasonable and that "no question was raised or any objection made" that the fees or expenses were excessive. He allowed the account "including counsel fees and expense of trial." Upon appeal to the Superior Court Lorimer, J. transferred without ruling the question of whether or not the account, with the above items included, should be allowed.
Thorp Branch (Mr. Branch orally), for the plaintiff.
Hughes Burns, and Dwight Hall, for the defendant.
We are not here concerned with the question of whether an executor or administrator appointed in the regular course is entitled to discharge himself upon his account with the necessary and reasonable expenses of attempting, whether successful or not, to probate his testator's will. The question before us relates solely to the powers and duties of special administrators.
The statute (P. L., c. 299, ss. 20, 21, 22), providing for the appointment and specifying the duties of these officers reads as follows:
"20. APPOINTMENT. Whenever, by reason of an appeal from the probate of a will or the appointment of an administrator, or from any other cause, there is delay in determining the final grant of administration upon the estate of a person deceased, a special administrator may be appointed, if the interests of the estate require it.
"21. HOW MADE. Such appointment may be made by the judge or by the superior court.
"22. DUTIES. The special administrator, under such directions and restrictions as may be inserted in his commission, shall return an inventory of the estate of the deceased, shall take care of and preserve his property and effects, and shall do all other acts which he may be directed by the judge or the superior court to perform."
It is evident from these provisions that a special administrator, unless specifically authorized by the Judge of Probate or the Superior Court, is only a temporary custodian of the estate of the decedent. His duties are only to preserve the estate intact during litigation concerning it and to do such acts as are reasonably appropriate to that end, and, upon the termination of litigation and the appointment of a regular executor or administrator, to turn over to the latter the property and effects of the decedent and to render an account of his stewardship to the court which appointed him. See 21 Am. Jur., Executors and Administrators, s. 804, et seq. Without special authorization, there is nothing in the statute to indicate that it is any part of a special administrator's duties to make distribution of the estate under his charge, and, without such authorization, we are of the opinion that it is no part of his duties to determine who the distributees are to be.
Since there is nothing in the reserved case to indicate that the special administrator ever asked for or received any directions from the court which appointed him to do anything except file an inventory of and care for the property entrusted to him, we are of the opinion that he lacked authority to take any steps to establish the decedent's will. In consequence the items in his account to the allowance of which the appellant objects should be disallowed.
Case discharged.
BRANCH, J., did not sit: the others concurred.