Charles Scheffer died in 1875, leaving a will in which- • these respondents were named executors. In September, that year, the will was admitted to probate in Earnsey county, and letters testamentary issued to the executors. The will made two direct money-bequests, to take effect only if the estate left to the executors in trust for the benefit of the testator’s children shall amount to $60,-000. There are several bequests of specific chattels; the homestead ánd furniture was left to the wife and the remainder of the estate to the executors in trust for various purposes. The return on this appeal does not show -what further was done in the administration till February, 1887, when the executors filed their account of receipts and disbursements from November 15, 1884, to January 20, 1887. The Probate Court thereupon appointed a time for the examination of the account, and caused notice thereof to be duly served. On the day appointed the court examined the account, and made an order to the tenor that: “It appearing that said executors have accounted for every part of the estate coming to their hands and that no profit has been made by them on any increase thereof, and the account of the said executors having been settled and adjusted, and a summary statement of the same as finally settled, allowed and adjusted by this court being below and herewith on motion of Wm. S. Moore, attorney for the said executors, ordered, that the said accounts be, and the same are, finally settled and allowed as filed and adjusted in and by this court.” Subsequently, the executors filed an account of receipts and disbursements from January 20, 1887, to February 20, 1888, and one from February 20, 1888, to January 27, 1890, and one from January 27, 1890, to February 10, 1893. No action seems to have been taken on the first two of these-accounts until the third was filed, when the court appointed a time-for examining the three, and caused notice thereof to be served. On the day appointed, several parties interested in the estate appeared, and objected to various items of disbursements in the accounts;, and on an examination the court disallowed those items, the aggregate thereof being a large amount. From the order made by the’ court the executors appealed to the District Court, and that court reversed the order of the Probate Court on the ground that the latter court had no jurisdiction over the subject matter of the order, to wit, the accounts,
*34This position seems based on the proposition that when the accounts were filed, and when the receipts and disbursements were made, the moneys referred to in them were held, not as executors, but. as trustees, under the will, and, as the Probate Court has no jurisdiction over trusts, it had no authority to call the trustees to account for their administration of the trusts. If they were in possession as trustees, and not as executors, the proposition would be true.
The whole estate of every deceased person is subject to administration, whatever disposition may be made of it by will. Whenever the jurisdiction of the Probate Court attaches in the particular instance to the estate, the whole of it, and more especially the personalty, comes within the authority and control of the court, for the purpose of administration; for distribution according to law and to the directions of the will, if there be one. The control of the property the court exercises through the executor or administrator, whose duty it is to bring it into his possession. Until it has passed to him through administration, no legatee, whether the bequest be to him in his own right, or as trustee, and no next of kin, has a right to the possession. That right is in the executor or administrator, as such, and if he takes possession he takes it in that capacity.
When he has once got it in possession in that capacity, he cannot discharge himself of responsibility for it. The court alone can discharge him. If he be also a legatee or next of kin, he cannot determine that his possession as officer of the court shall cease, and that-thereafter he will hold as legatee or next of kin. The court alone can do that. He cannot determine when the administration shall be closed, and when the jurisdiction of the court shall cease. The court alone can do that.
So that, in the case of one who is executor, and also a legatee, in trust or otherwise, to ascertain whether his possession as executor has ceased, and his possession as legatee begun, we must look to the action of the court upon the matter.
In the exercise of their functions by Probate Courts, things that are mere formalities are not required. On the matters of closing administration, of discharging the executor, or relieving him from further responsibility, an accurately drawn and formal order or decree may not be necessary. But there must be some order or de*35cree which contains the substance of the matter, which shows that the attention of the court was directed to it, and that it intended the result claimed. That must appear with certainty, beyond mere conjecture.
There is nothing in this case, so far as the record shows, indicating that the attention of the Probate Court was ever directed to the matter .of closing the administration, or of changing the position of respondents, of the estate, or any part of it, from possession as executors to possession as legatees or trustees, or that the court intended to close administration, or to discharge the respondents, to any extent, from their responsibility as executors. That the court allowed an account, from which may be inferred that they had made investment of funds of the estate, which, without any order of the ■court, they had no- authority to make, but which they might make as trustees, when they came to hold the funds as such, is not enough.
Judgment reversed, and the court below directed to hear the appeal on the merits.
Buck, J., took no part in the decision.^Opinion published 59 N. W. 956.)