dissenting. — The application of Mrs. Ming for writ of certiorari, on July 28, 1894, and her application for writ of habeas corpus, on August 7, 1894, involved some of the same facts. Although commenced at different times, they were argued together, and may as well be treated in one opinion. I will follow the method of the prevailing opinion in that respect. I will examine the question of the certiorari first. It appears that the district judge temporarily removed or suspended Mrs. Ming as executrix, and appointed Joseph N. Kenck, public administrator, as special administrator, or, in effect, directed the public administrator to take charge of the estate. (Probate Practice Act, §§ 95, 113.) A writ of certiorari was issued by this court to review that order. I think that the question upon this certiorari is whether the district judge had jurisdiction to make the order directing Kenck to take charge. This court said in the certiorari case of State ex rel. Murphy v. The Court, 11 Mont. 405: “ We have only to inquire whether the application is properly before us, and, if so, whether the district judge exceeded his jurisdiction.” I think that he had jurisdiction to make the order which he did in this case. Section 113 of the Probate *91Practice Act is as follows: “ Whenever the probate judge has reason to believe, from his own knowledge or from credible information, that any executor or administrator has wasted, embezzled, or mismanaged, or is about to waste or embezzle, the property of the estate committed to liis charge, or has committed, or is about to commit, a fraud upon the estate, or is incompetent to act, or has permanently removed from the territory, or has wrongfully neglected the estate, or has long neglected to perform any act as such executor or administrator, he must, by an order entered upon the minutes of the court, suspend the powers of such executor or administrator, until the matter is investigated.” The probate judge is now the district judge. Under this statute, if the district judge has reason to believe, from his own knowledge or from credible information, that the executrix is not a proper person to continue in the performance of her duties, for any of the reasons set forth in the said statute, I think that he has jurisdiction conferred by this section to suspend her powers until investigation is made. He may err in his reasons to believe; and, if he discover such error, he may correct it upon the final investigation. But, if he has this reason to believe, he has the jurisdiction; and, if he has the jurisdiction, certiorari, I think, will not review his action. (State ex rel. Murphy, supra.) Without commenting upon the discreet or indiscreet exercise of his jurisdiction in suspending Mrs. Ming, I think that the district judge had sufficient reason to believe that she was an improper person to continue to execute the office of executrix. He had before him Mrs. Ming’s report as executrix, upon which the other heirs, John and James, had indorsed their approval, filed February 1, 1894. He also had before him the pleadings in an action filed January 17, 1894, in the court of which he was judge. In that action John and James Ming were plaintiffs, and Mrs. Ming and the First National Bank were defendants. In their complaint in that action John and James charge their mother, Mrs. Ming, with exercising undue influence over them in procuring them to execute a mortgage upon their property, or a large portion thereof, to the First National Bank for the sum of about ninety thousand dollars. The action was for the cancellation of that mortgage. Therefore *92the district judge found in his court that on February 1, 1894, John and James Ming approved of all of the acts of their mother, as executrix, and that also, within sixteen days of that date, on January 17, 1894, they, under oath, accused her of working a fraud upon them. They seem to blow hot and cold within a very few days. In one breath they charge their mother with a ninety thousand dollar fraud, and in the next they approve of all her acts as executrix. These facts were all set down in writing, and solemnly filed in the district court, over the signatures of John and James Ming. I should think that this was fairly “credible information” (Probate Practice Act, § 113); and, furthermore, I think it was knowledge and information which gave the district judge, under section 113, jurisdiction to suspend Mrs. Ming. To be sure, the sons, John and James, did not ask her suspension; but section 113 says that the district judge must suspend the executrix, not simply upon complaint by any one, but of his own motion, “whenever he has reason to believe, from his own knowledge, or from credible information,” etc. The California supreme court said, in Deck’s Estate, 6 Cal. 669: “The probate judge, as the general supervisor and guardian of the estates of deceased persons, has power, by law, to suspend or remove an administrator ‘ whenever he has reason to believe, either from his own knowledge or frdm credible information, that such administrator has fraudulently wasted or mismanaged the estate, or is about to do so, or has become incompetent to manage it/ (Comp. Laws, §§ 281, 283, p. 418.)” It is observed that the California statute as to the ground upon which the court may act is the same as ours. That case came up on appeal, and the court said: “With the exercise of this power, so necessary to the protection and security of estates, an appellate court should not interfere, unless it be clearly shown that there has been a gross abuse of discretion by the probate court.”
The case before us is on certiorari, and not appeal, as was the California case. I cannot find it in my mind to doubt that the district judge had jurisdiction to suspend Mrs. Ming. Having suspended the executrix, he appointed Joseph N. Kenck, public administrator, as special administrator, and *93ordered that he take charge of the estate. This order is attacked on certiorari as being without jurisdiction. If the district court had jurisdiction it is found in section 95 of the Probate Practice Act, which provides that, when an administrator or executor is suspended, the.district judge must appoint a special administrator to collect, take charge of, etc., or he may direct the public administrator of his county to take charge of the estate. It is to be kept in mind that on this ce?iiorari the question is whether the judge had jurisdiction to order the public administrator to take charge. I think that he had such jurisdiction under section 95 and other sections, as construed in State ex rel. Murphy, supra. That was a case of vast magnitude, and it was decided by unanimous court, and not without able argument and due deliberation. I feel satisfied with the reasoning in that case to-day, as I did when it was decided. I think this certiorari cannot be sustained without overruling the Murphy case. I thought so when the application for the writ was made, and for that reason ventured to decline to join in the order for its issuance. The statutes under consideration are fully set out in the statement made in the Murphy ease, and may be here referred to without repeating them. In that case the court had appointed as special administrator one James A. Talbot, under the tenth clause of section 55, Probate Practice Act, as “a person legally competent.” The public administrator contested this appointment, claiming that it should have been given to him. This court said: “When there is a delay in appointing an administrator the district judge, for the temporary protection of the estate, may do one of two things (§ 95): 1. He may direct the public administrator to take charge of the estate; or, 2. If he does not so direct he must appoint a special administrator. There seems to be no ambiguity in this provision. A discretion is given to the district judge to adopt one of two courses. In the case at bar the judge exercised this discretion, and exercised it by not directing the public administrator to take charge of the estate. The judge took the other alternative of the statute, and proceeded to the appointment of a special administrator. He thereby did some thing wholly inconsistent with directing the public *94administrator to take charge of the estate, and thereby, as well, passed upon and decided the question of directing the public administrator to take charge, and decides it adversely to such taking charge by the public administrator. This was an act of judicial discretion, of which no abuse is shown, and of which the public administrator cannot complain.” We held in that case that it was in the discretion of the district judge to appoint the public administrator; that is to say, in effect, to order him to take charge of the estate, or to appoint one of the persons named in the clauses set forth in section 55. It is true that the public administrator appears as eighth in the classes named in section 55. As to that, we said, further, in the Murphy case: “ Having passed and settled this matter, and proceeding to the other alternative allowed the judge, under section 95, viz., the appointment of a special administrator, which the judge could do without notice to any one, and out of term time (§ 96‘), the judge finds that section 97 provides that preference must be given in such appointment to the persons entitled to general administratorship, in the order named in section 55. In that order the public administrator appears as eighth. But the law has already provided in the other alternative in section 95 that the public administrator, as to temporary care of the estate, stands ahead of all classes of persons named in section 55, if the judge chooses to put the estate into his hands. A special provision is thus made for putting the public administrator in charge — a special provision which takes him out of the general classes of administrators. If it is the judgment of the judge that the public administrator should take the estate the judge may so direct, to the exclusion of all claimants to special letters. Now, when the judge passes the public administrator, and practically says, ‘I will not appoint him, as I may, and determine to proceed under the other alternative of section 95, and appoint a special administrator,’ then, in making his selection from the classes of persons named in section 55, must he again adjudicate upon the claims of the public administrator — a question which he has already decided under an ampler provision of the law allowing him to give to him the estate? Must he again say whether or not he will give him charge of the estate when he has already settled *95the matter in the exercise of his discretion, and said he would not do so? We think not. The judge had the amplest and largest powers to direct the estate into the hands of the public administrator, to the exclusion of every one. He did not exercise that power. It cannot be said that, the judge having deliberately ignored the public administrator, when he had full power to recognize him, he must again consider his claim when proceeding under the other alternative of the statute. This would be equivalent to holding that the judge may, if he chooses, make the public administrator the temporary custodian of the estate; but, if he does not do so, as he may, then, in appointing a special administrator, he must, under certain conditions, do the very thing which the other provision of the law says he may do, and which, in his discretion, he has decided not to do. We cannot agree to any such construction of the statute. It would be a strain upon language approaching a point of fracture. The correct view of sections 55, 96, and 97 is that the public administrator is not in the list of candidates for special administratorship, for the reason that his claims for temporary custodianship of the estate are provided for in another separate portion of the section, by which he is placed first in choice, if the judge desires him to take charge.” We thus held that the public administrator is read out of the classes in section 55, and that, instead of there being ten classes in that section, there are, indeed, only nine, after dropping the public administrator from the list. This was so held because the selecting of the public administrator for temporary custodianship of an estate was separately and fully provided for, and it seemed not reasonable to believe that it was intended that the court should consider him in the list named in section 55, when the ample power was given to appoint him under another and special provision. Therefore, the district judge, when the temporary care of an estate is to be provided for, has two divisions of persons to look to. The one division is composed of but one person — the public administrator; and the other division is composed of nine classes of persons named in section 55 — that is to say, nine classes, after excluding the public administrator from that list, for the reasons above set forth. If the judge goes to the first division, there *96is only one person for him to select; if he goes to the second division, then he must observe the priorities of the classes, as set out in section 55. This seems to me to be what was held in the Murphy case. Under this holding I do not think the language of the court in giving the public administrator charge of the estate is important. I do not think it.is material whether the judge follows the language of the statute, and says, “ It is directed that the public administrator of the county take charge' of the estate”; or whether he uses the language of “appointing an administrator.” The substance of the matter is that he goes to the one of two divisions of persons above set forth to select the temporary custodian of the estate. This is what the district judge did in this case. He had these two divisions of persons before him. He had discretion, under the law, to go to either division. He exercised his discretion in taking the public administrator. I think that he had jurisdiction to do this. He used his.discretion within his jurisdiction. Of course, it may be said that a district judge may not be discreet or wise in his action in such a matter. But the legislature has intrusted him with this power, as it had the right to do; and, if the legislature places this discretion in the district judge, I do not know that any other tribunal has cause to criticise the legislative act. It may be that the district judge is the best depositary for such discretion. At all events, the legislature so thought, as it appears to me; and I do not feel like indulging in any presumptions that the district judges will abuse this discretion. There appears to be no showing here of the abuse of discretion, and, as was said in the California case above cited: “With the exercise of this power, so necessary to the protection and security of estates, an appellate court should not interfere, unless it be clearly shown that there has been a gross abuse of discretion by the probate court.” I am therefore of opinion that the writ of certiorari should be dismissed. It may be noted, in passing, that the appointment is only a temporary matter. It is only for the purpose of having some one in charge pending an investigation, and until the regular administrator can be appointed, if a permanent removal is determined upon.
The certiorari being disposed of, as it seems to me it ought, *97leaves to me the consideration of the habeas corpus. After suspending Mrs. Ming, and appointing Kenclc temporary custodian, the court issued a citation to Mrs. Ming, under section 114 of the Probate Practice Act, requiring her to appear and show cause why her letters of executorship should not be revoked. She appeared and filed an answer to this order. I think the judge was pursuing the statutory authority invested in him by sections 114 and 115 of the Probate Practice Act, when making this citation and initiating this proceeding. The executrix had been suspended, as we have seen, an act within the jurisdiction of the court, as I am of opinion, and then properly followed the hearing under sections 114 and 115, to determine whether she should be removed permanently. The hearing was for this purpose. It was the duty of the court to ascertain whether Mrs. Ming should be permanently removed. If she were to be removed it would seem to be the duty of the court to ascertain whether there were facts which would demand her removal, or whether the facts were such that she should be retained in her office as executrix. The court thereupon made an order appointing referees to take testimony in the matter, and report their findings of fact. Upon the hearing before the referees matters arose which resulted in the executrix being committed for contempt; hence the habeas corpus. The question arises whether the court had authority to appoint the referees. If it had not, Mrs. Ming was guilty of no contempt in her conduct before the referees. Section 115 of the Probate Practice Act says: “ The issues raised must be heard and determined by the court.” Section 113, just preceding, had given the judge power to suspend the executrix temporarily. The statute seems to regard the suspension as perhaps an emergency matter, and conferred the power upon the judge; but, upon the question of the permanent removal, it guards against any implication that the district judge could, at chambers, go on with the hearing, and provides, as quoted, that the court shall hear and determine. I think the intention here is to distinguish the court from the judge, and require that a matter of such importance should be determined in open court, and not at chambers. I do not think that the last sentence of section 115 is intended to prohibit the *98court from ordering a reference, if authority to do so appears elsewhere than in this section. The words “hear and determine” are words used in defining jurisdiction. All courts hear and determine the matters which come before them, including those matters as to which the court may unquestionably order a reference for its information. Even if there be a reference to hear evidence and report facts the court finally hears and determines the issue. Therefore, I think that section 115 was not intended to prohibit a reference in such a matter.
If it be suggested that no issue was raised here because the heirs had approved the executrix’s account I think it may be replied that there is the same issue here as could ever occur when a proceeding arises under sections 113, 114, and 115. Here the judge, of his own motion, without complaint of any one, “from his own knowledge or credible information” (§ 113) suspends an executrix, and goes into a hearing as to whether such executrix should be permanently removed. As to whether *the court had power to order a reference here, we find section 323 of the Probate Practice Act provides: “Except as otherwise provided in this title, the provisions of the Civil Practice Act of this state are applicable to and constitute the rules of practice in the proceedings mentioned in this title.” Section 710 of the Code of Civil Procedure provides: “The provisions of this code, so far as applicable, shall govern the proceedings and practice in the probate courts of the territory in civil actions.” Section 283 of the Code of Civil Procedure provides: “A reference may be ordered, upon the agreement of the parties, filed with the clerk, or entered on the minutes. . . . .” Then follow subdivisions. Section 284 of the Code of Civil Procedure provides: “When the parties do not consent the court may, upon the application of either, or of its own motion, direct a reference in the following cases: 1. 2. .... 3.4. When it is necessary for the information of the court in a special proceeding.” The court, in ordering a reference, recites as follows: “And whereas, on or about the twentieth day of January, 1894, she filed a very voluminous report, containing many accounts, which said re- » port was so extensive, covering a long period of time as in the judgment of this court to demand a reference; and whereas, in *99the matter of the investigation of her fitness to continue her duties as executrix of this estate, as it appears, many accounts will have to be examined, and much evidence taken, which also, in the judgment of this court, is a proper subject for reference.” It is then ordered that the referees so appointed “do examine in full the transactions set forth in the account, which the said Catherine L. Ming claims to be a full, true, and correct history of her transactions as executrix, and to take her evidence, and the evidence of such other persons as they may deem necessary, touching the transactions and the matters set forth in said account; and that the said referees do also take evidence upon the question of whether the said executrix is competent to manage the affairs of said estate, and upon the question of whether or not the said Katherine L. Ming has mismanaged said estate, or wasted any of the assets belonging to the same, or appropriated or misappropriated any of the funds thereof, and generally as to whether she has conducted herself in accordance with the laws of Montana regulating the duties of executors of estates.” I think that these matters set forth in the order of reference were in the language of section 284 of the Code of Civil Procedure, necessary for the information of the court, and that, therefore, the court was empowered to make a reference in order to obtain the information as to these matters. The referees were to determine nothing. It was left to the court, after the referees collected the facts, to both hear the facts so collected and determine the matter. The referees were to examine into Mrs. Ming’s management of the estate. Their appointment was not like an ordinary one to examine an account. The issue was as to whether Mrs. Ming should be removed. The examination of her accounts was an incident to that issue, or was evidence in the determination of such issue. I cannot see any valid objection, under the law, to the investigation as to her removal, or to the appointment of the referees to collect the evidence and report the facts to the court. In this respect I also regret that I am compelled to differ from my associates.