
    EDWIN WRIGLEY v. JOHN WATSON.
    
    October 23, 1900.
    Nos. 12,303—(49).
    Estate of Decedent — Surrender of Property by Owner — Conversion.
    Where the owner knowingly and intentionally turns bis property over to the executor or administrator of the estate of a deceased person, as the property of such deceased person, and permits and assists in the conversion thereof to the uses and purposes of the estate and in the administration thereof, he cannot afterwards hold such executor or administrator liable as for a conversion of the property. In such case, both the owner and executor are estopped from disputing the title of the estate to the property.
    In the probate court for Goodhue county Edwin Wrigley, one of the executors of the last will of Martha Wrigley, deceased, petitioned for an order requiring John Watson, his co-executor, to render a final account. From an order requiring Watson to pay oyer a balance in bis bands, be appealed to tbe district court for said county. In tbe district court tbe appeal was beard before Williston, J., wbo made findings of fact, and as conclusion of law found that respondent was entitled to judgment affirming tbe order of tbe probate court. From an order denying a motion for a new trial, Watson appealed to tbe supreme court.
    Affirmed.
    
      George H. Hammond and Fred W. Gail, for appellant.
    
      Albert Johnson, for respondent.
    
      
       Reported in 83 N. W. 989.
    
   BROWN, J.

Martha Wrigley and Edwin Wrigley were husband and wife, residing for a number of years in Goodhue county. Martha died in 1895, baying previously made and executed her last will and testament, in which she designated her husband and appellant, John Watson, executors. Soon after her death they qualified as such executors, were duly commissioned, and entered upon tbe discharge of their duties. Tbe will contained several bequests of personal property, to which tbe husband fully assented by a written document made and filed by him with tbe probate court. Tbe executors joined in an inventory of tbe property of tbe estate, which consisted of both real and personal estate. Tbe property so inventoried and reported to tbe court was at all times, by both executors, treated and considered as tbe property and estate of tbe deceased. Part thereof was converted into money, and tbe money used in various ways in tbe administration of tbe estate, a portion being used towards tbe payment of one or two of tbe bequests. No question was ever raised as to tbe true ownership of such property until April, 1899. At that time tbe husband, Edwin Wrigley, petitioned tbe probate court for an order requiring a final account from bis co-executor, which was duly ordered, and subsequently filed by appellant, April 28, 1899.

At tbe bearing before tbe probate court on this petition, it seems to have been agreed that the property so taken possession of by tbe executors, and so converted to tbe purposes of tbe estate, was not in fact tbe property of deceased or of her estate, but was instead tbe property of her surviving husband, Edwin Wrigley. Tbe probate court found tbe fact accordingly, but made an order requiring appellant to pay oyer to bis co-executor tbe sum of $286.06, found to be a balance in bis bands from tbe proceeds of sucb property. It should be further stated that appellant tendered bis resignation as executor at tbe time of filing bis final account, which tbe court ordered accepted upon payment of sucb balance to bis co-executor. On appeal to tbe district court, tbe order of tbe probate court was affirmed, and Watson appeals to this court from an order denying a new trial.

Tbe contention of appellant is that because tbe property belonged to, and was owned by, tbe husband of deceased, and was not in fact a part of her estate, be cannot be required to account for it, and that tbe probate court bad no jurisdiction to require him to do so. His contention might be sound were it not for tbe fact that tbe property was knowingly and intentionally delivered to him by tbe husband as property of tbe estate of bis wife, and tbe fact that the estate has received tbe use and benefit thereof, and that tbe proceeds have been used in tbe payment of tbe debts and expenses of administration, with tbe knowledge, consent, and assistance of sucb husband. Under sucb circumstances, tbe appellant cannot be held liable for tbe conversion of tbe property so administered upon as tbe property of tbe estate, and no very good reason occurs to us why be should be beard to deny that sucb property in fact belonged to tbe estate.

There are some cases bolding that an executor or administrator who has received property supposedly, but not in fact, belonging to tbe deceased, cannot be required to account therefor to tbe estate, but they are based on tbe theory that be would also be liable to tbe true owner. And similar holdings are made in cases where tbe executor or administrator has turned in to tbe estate, by mistake, property of bis own. But in this case there was no mistake on tbe part of tbe true owner, nor can tbe appellant be liable to him. Tbe husband voluntarily and intentionally turned over bis own property as tbe property of bis deceased wife, of whose estate be was one of tbe executors, and assisted in converting it to tbe uses and pur-' poses of tbe estate. It is clear that be is forever estopped from disputing tbe fact that sucb property belonged to tbe estate, and bis co-executor should also be estopped. Tbe finding that tbe property did not in fact belong to tbe deceased is therefore immaterial.

The suggestion of counsel that the probate court ordered the appellant to pay the balance in Ms hands to Edwin Wrigley in his individual capacity or right, and not as executor of the estate, is not sound. The probate court had no jurisdiction to make such an order, and it must be taken that the payment is to be made to Wrigley as executor of the estate, and not otherwise.

We discover nothing in the record in this case to reflect on the integrity of appellant. He had the undoubted right to contest the matter of his liability upon legal grounds, and we discover no reason for criticising his conduct in so doing.

Order affirmed.  