This appeal is taken from an order made by the judge of the superior court of the county of Imperial, t.Ma state, sitting in probate, charging appellant, who is the administrator with the will annexed of the estate of Rene G-rivel, deceased, with the following property not accounted for or reported by him as said administrator: 1,600 head of cattle of the value of approximately $65,000; an undivided one-half interest in a harvested crop of cotton, the gross receipts from which were found by tlie court to be approximately, $60,000; an “interest in a bank account in Los An
“It is therefore ordered that Charles T. Wardlaw, administrator of said estate, be and he is hereby charged in his account with all of the above mentioned personal property as came into his hands, as administrator of the estate of Rene Grivel, wherever situated, and which was the property of the decedent at the time of his death. It is further ordered, adjudged and decreed that said administrator, Charles T. Wardlaw, make and file with the clerk of this Court forthwith a full, accurate, true and complete inventory and accounting under oath of all of the assets of the estate of Rene Grivel, deceased, and that a copy of this order be served upon said administrator.”
The situs of the greater portion of the estate was the republic of Mexico, and it is claimed by appellant that said property was subject to the control of the ancillary administratrix, who, it is further claimed, had qualified as such in a Mexican court and had assumed to administer upon all of the property of the estate found to be within Mexican territory at the time of decedent’s death. The first important question submitted for our consideration, waiving for the present the question of situs, is whether the evidence adduced at the hearing was legally sufficient to support the court’s finding to the effect that all or a considerable portion of the property and moneys above mentioned had come into the hands of the administrator as property of the estate and that he was chargeable therewith.
Appellant was the only witness examined at the hearing had upon the application of one of the persons interested in said estate to compel said appellant to render a full, correct and complete report and account of all moneys and property collected by him or which came into his hands as administrator.
If an affidavit such as was attempted to be used in this proceeding cannot be regarded as possessing sufficient evidentiary value to support the findings, and we are of the opinion that it cannot be so regarded, no evidence is left in the record to support the finding that the decedent owned an interest in a bank account standing in a fictitious name in the sum of $14,000, or any other sum, or to support the finding that decedent owned an undivided interest in a harvested cotton crop of the approximate gross value of $60,000, or that the value of said herd of cattle that was ranging upon Mexican soil and which was. sold in Mexico was of a value greater than $61,000. It is also obvious that a portion of the order is too vague and indefinite to constitute the basis of a charge against the administrator on account of property or moneys received by him and not reported.
The proceeding was initiated by Thirza Bass, a former wife of the testator, Rene Grivel, who was given a bequest of $5,000. The five children of herself and said testator, issue of their former marriage, and the surviving widow, Emily Hunt Grivel, were given the residuum of the estate. The wife was nominated as the executrix, but waived her right to administer, and appellant, C. T. Wardlaw, became administrator with the will annexed. It is vigorously asserted by appellant in his brief, and, equally as vigorously denied by respondent, that said Emily Hunt Grivel was duly appointed by a court of competent jurisdiction of the republic of Mexico ancillary administratrix of that portion of the deceased’s estate which had its situs in the republic of Mexico, and that said Emily Hunt Grivel, by virtue of the authority vested in her as such administratrix by the laws of the republic of Mexico, appointed C. T. Wardlaw to act as her agent or attorney in fact in the settlement and administration of said estate having its situs in said republic of Mexico. No documentary or other competent evidence
There does not appear to be anything in the nature of the situation that would render it at all difficult to establish by satisfactory proofs the extent, character or value of the property of the estate. If any moneys belonging to the estate have been concealed or deposited by the administrator or by any other persons connected with the estate in the name of a fictitious person it would not be difficult under the remedial provisions of the statute to discover the same. The difficulty that we have had with this proceeding arises from a lack of thoroughness of investigation into the affairs of the estate and also a lack of legal evidence establishing with some degree of definiteness the facts brought in issue. A suspicion merely as to the existence of fraud will not justify a court in resorting to summary action, but foundation for its existence must be established, by competent and sufficient evidence.
The partnership relation existing between the decedent and a third party should be expeditiously closed, and if the surviving partner has unnecessarily delayed the winding
The evidence being insufficient, as it is brought to us, to support the findings of the court as to the estate’s ownership of much of the property involved in this proceeding, and there existing much uncertainty as to the amount of funds and property with which the appellant is charged by the court, the order is reversed; with the right granted each party to place before the court such legal evidence as is obtainable, both in the prosecution and defense of the issue joined.
The matter is therefore remanded to the court below to proceed in the manner herein directed.
Richards, J., Curtis, J., Waste, C. J., and Shcnb, J., concurred.