I do not agree with the majority opinion and I respectfully dissent. While I am not adverse to the order remanding the case for a determination as to the amount of the cost judgment that is for the benefit of the estate, I do not see much necessity therefor. I would hold that this cost judgment against the retiring special administratrix passed to the general administrator, whether mentioned in the former's final report or not.
The majority opinion states the rule that a general administrator will be required to account for his indebtedness to the deceased or to the estate unless he is able to show his insolvency or inability to pay throughout the period of administration. With this rule I have no quarrel. But the majority opinion extends this rule to the special administratrix. With that conclusion I do not agree. No case is cited in the majority opinion which so holds. In Division IV of the majority opinion it is stated that if the will contestant had been some person other than the special administratrix, the latter would have had the duty to collect the costs taxed against that other person. If by that statement is meant her mere failure so to do would constitute an accounting failure, I do not agree. The cited case of In re Howell's Estate, 66 Neb. 575, 92 N.W. 760, 61 L.R.A. 313, is not authority for the statement. There no special administrator was involved. The case merely held that a resigning general administrator, who was concededly insolvent throughout the administration period he served, need not account for the money he owed deceased on a note. He need only turn over his note, and his administrator's fee for a credit thereon, to his successor, and his final report would be approved.
A special administrator is appointed, under section 11885, *Page 1355 Code of 1939, providing for such appointment "* * * to collect and preserve the property of the deceased * * *." I do not feel that an appointment under this statute casts upon the special administrator the general duty to collect either the debts owed to the deceased or the estate. It is true that to carry out the duty of preservation of assets which is placed upon the special administrator, he would have the duty to collect obligations when there is danger that the obligations would be rendered uncollectible by delay. I would interpret the phrase "to collect" in the statute to mean "to gather in," "to assemble." I do not think it places on the special administrator the general duty to collect all the notes due the deceased, nor all the debts due the estate. I think his final report, at the time he turns over the assets of the estate to the general administrator, should be approved if he turns over the obligations or choses in action, if it is not shown that they have decreased in value by any failure to institute collection proceedings.
I think this interpretation is somewhat fortified by the use of the words "property of the deceased" in the statute. To collect the property of a person hardly means more than gather it in or assemble it. It would seem that if the legislature had meant the duty to collect the debts or obligations due the deceased, it would have said so. The same rule should apply to debts due the estate that were not due the deceased. If they are owed by the special administrator or administratrix individually, and do not arise out of any breach of duty owed to the estate, but exist against such representative solely in his or her individual capacity, then there is no duty to account for the money due on such debts. An added argument might be made in favor of a rule that the special administrator has not the general duty to collect debts due the estate. The statute only states his duty "to collect * * * the property of the deceased." In this case the debt was never the property of the deceased.
The record shows administratrix was both a claimant and a legatee in this estate. The judgment goes to the general administrator anyway. He can collect it. I agree that her fee as special administratrix should be retained to apply on the cost judgment against her. The court merely sequestered it until the *Page 1356 claim she is asserting against the estate (in more than the amount of the judgment) is determined. I would affirm the action of the trial court in approving the final report and sequestering the fee.
MILLER, J., joins in this dissent.