O'Sullivan v. Alexander Et Al‪.‬

Submitted January 8, 1925. Executors and Administrators — Suretyship — Action on Bond When Premature — Probate Courts — Jurisdiction. District Court — Probate Jurisdiction. 1. The district court sitting in probate has primary and plenary jurisdiction over the administration of estates of deceased persons. Executors and Administrators — Sureties — Action at Law to Recover Assets of Estate Does not Lie Until Settlement of Account. 2. An action at law to recover from an administrator and his surety a money judgment for assets in the hands of the former does not lie until after accounting and settlement had in the probate proceedings. Courts — Court First Acquiring Jurisdiction Retains It to End of Litigation. 3. Where two courts — the district court and that court sitting in probate — have equal jurisdiction over a controversy and the parties, the court which first acquires jurisdiction may continue its exercise to the end of the litigation. Probate Courts — Power to Issue Process. 4. The district court sitting in probate has the same jurisdiction in the matter of issuing process, under sections 10295 and 10361, Revised Codes of 1921, as has the district court; hence superior authority of the district court in that regard cannot be urged as a reason for invoking its jurisdiction, rather than that of the probate court, in an action against an administrator who had removed from the state, and his surety, to recover assets of the estate prior to settlement of the former's account. Executors and Administrators — Settlement of Account Proceeding in Rem. 5. The settlement and allowance of an administrator's account is a proceeding in rem and can be made in his absence if he should refuse to respond to statutory service of process. Executors and Administrators — Liability of Surety Arises, When. 6. The liability of the surety on an administrator's bond does not arise until default of the latter in the performance of the duties enjoined upon him by law.