In the Matter of the Estate of HENRY WELCH, Deceased. JOHN PURCELL, Appellant, v. MARY C. YOUNG et al., Respondents, 110 Cal. 605

Temple, J. This is the second appeal in this matter. (In re Welch, 86 Cal. 179.) After the remittitur was filed, the petition for the removal of the administrator was amended, and the matter retried. The court found as before, and also three additional facts, and again removed the administrator. The order is expressly based solely upon the new facts found on the retrial. They are: 1. That deceased had, at the time of his death, ten or twenty thousand dollars in money, which came into the possession of the administrator, or of which he had knowledge.

That he failed to include it in his inventory, or to inform the court thereof; 2. That said Purcell collected for Henry Welch, before Welch’s death, some twelve hundred dollars, which he has not accounted for or charged himself with; and 3. That Welch was a partner in the firm of “ McKenna and Purcell,” his interest standing in the name of said Purcell, who was only nominally a partner, and that he has not shown that interest in the inventory, or given any information in regard thereto to the court.

In regard to the first finding, which, no doubt, is most relied upon, if the evidence produced were competent, it does raise a grave suspicion that some assets were concealed, either by the widow or her brother, who is the administrator, or both. It is not necessary to discuss the question as to whether this finding was supported by the evidence. Errors were committed on the trial in the admission of testimony which will necessitate a new trial.

The evidence was almost all hearsay, consisting largely of declarations made by the deceased to the effect that his estate was of the value of fifty, sixty, or seventy thousand dollars, and that he had a large sum of money in his house. This testimony was not admissible against appellant. There is no analogy between such statements and declarations made by a person in possession of property characterizing his possession. In the last •case, the claim made by the possessor is of itself a material matter. Or, in the instances where it is not so, rthe declarations are against interest. Such was not the case here.

The declarations were material only as showing the fact asserted, to wit, the ownership and possession of property, the very existence of which was sought to be proven by the declarations. The conversation between Mrs. Welch, Michael Purcell, a brother of appellant, and a witness for petitioner, was irrelevant. I do not think the evidence sustains the second finding. It seems to show that Purcell did not own the machine, but it also shows that he paid the money to Welch.

We may be at liberty to believe that Purcell testified falsely when he said he gave the money to Welch for safe-keeping; perhaps also to suspect that the claim he presented against the estate was simulated. He sold the machine two years and a half before Welch died, and as he gave the money to Welch, the presumption would be if Welch owned the machine it was a payment. As to the third finding, the only real evidence tending to show that Welch owned the interest in the partnership was the fact that, a few days before his death, he assigned his interest in it to Mrs. Welch in the presence of John Purcell.

There may be grounds for attacking this transfer, but none are shown. Under such circumstances it would not justify the removal of appellant. If the other matters found were immaterial to the issue they should not have been found. The fact that appellant paid an attorney’s fee improperly would constitute no ground for his removal. I know of no law which authorizes a probate judge to direct an administrator where and how he shall keep the assets of an estate, and surely there ought to be no such law. The administrator is liable for their safety on his bond.

If the court could lawfully take charge of them it would deprive interested parties of this security. If goods are lost it may be a question whether they have been properly cared for. If they have been placed where the judge has directed, and then lost, he will have prejudged the case before the trial. Administrators cannot be deprived of the actual custody of the assets of the estate by such an order. The order is reversed and a new trial ordered. McFarland, J., and Henshaw, J., concurred. Hearing in Bank denied.