majority">Harwood, J.

— This writ of habeas corpus is accompanied by a writ of certiorari, whereby all the proceedings leading up to the order for the commitment of relator are brought before this court. Thereby it appears that John H. Ming died in the year 1887, leaving, as heirs, Katherine L., widow, and John *83H. and James L. Ming, sons of decedent, to whom decedent had, by last will and testament, bequeathed all his estate, and appointed Katherine L. Ming executrix of said will; that said will was duly admitted to probate, notice to creditors given, and other preliminary matters and proceedings as to said estate, required by law, were attended to; that in 1889 the executrix made a report showing the condition of said estate, which report, after notice, as provided by law, was considered, settled, and approved; that no report was thereafter made until about February, 1894, when, in obedience to an order of court calling for a report of the condition of said estate, said executrix presented one, covering the period intervening since the first report, made in 1889; that said other two heirs, John H. and James . L. Ming, both being of the age of majority, joined in approving tire last-mentioned report. In their approval thereof these heirs say: “We have been at all times familiar with the executrix’s management of this estate; have been consulted freely by her in the matter of sale of personal and real estate, and all rental of real estate, from which the income has been derived; and have also approved, and hereby approve, her management in this estate in that respect. We have also been familiar with the several items of expenditure, as they have been made; have been consulted freely by her at the time and under the circumstances when the same were made; and we have approved, and do hereby approve, all her acts in regard thereto, and we hereby give our unqualified assent and approval of all her acting as executrix, as shown herein, and of the expenditures contained in this report, and mutually join in the request that this, her report, be allowed, and that she be permitted by this court to retain from the future income of said estate the present indebtedness of two hundred and fifty-three dollars and twenty-two cents, now shown to be due her, and such other items of expenses as she may have incurred, or may hereafter incur, in the interest and for the benefit of this estate.” This report was not only accompanied by the approval of all heirs interested in said estate (all of them being of the age of majority), but no creditor, or any one whosoever claiming to be interested, has made any objection thereto since the filing thereof. Nor does there appear to have been any inves*84tigation, consideration, or other action taken by the court in respect to said last report (Probate Code, §§ 265-68),- until after the peremptory order removing the executrix was made. But, on or about July 23, 1894, an order was made by the judge of the probate court peremptorily removing said executrix, basing said order, as appears therefrom, upon the ground that said executrix had not .made annual reports of the condition of said estate, from time to time, for the years intervening between 1889 and the said last report; and, upon the further ground, that it had come to the knowledge of the judge, exercising probate jurisdiction, through the files and records of the district court, within and for Lewis and Clarke county, that an action had been commenced in that court by John H. and James L. Ming against the First National Bank of Helena, and the relator, Katherine L. Ming, for the purpose of obtaining a decree canceling a certain mortgage executed by Katherine L., John H., and James L. Ming, of their interests in certain property of said estate, to said bank, to secure certain indebtedness, the ground alleged for cancellation of said mortgage being that Katherine L. Ming had used undue influence with John H. and James L. Ming to induce them to join as parties thereto. Thereafter the relator, Katherine L. Ming, was cited- to appear before the probate court; and the court appointed three referees to investigate and report upon the account of the executrix, last filed, and generally to inquire into the management of said estate by the executrix, and also to inquire into the question of the fitness and competency of said executrix to remain in that office, and report upon those questions. Thereupon the referees, in proceeding with that inquiry, called said executrix as witness, and, having questioned her generally in regard to her last account and report upon said estate, required her to produce all books in her possession wherein were entries or memoranda of transactions or accounts of expenditure in reference to said estate. The executrix replied that, if proper objection or contest were made as to any item or items of the account shown in said last report, she would establish the same by proof, but, without such objection, she declined, through her counsel, to produce books and enter upon a showing on the inquisition- of the referees, *85where no question, objection, or contest had been made. Report of this conduct of the executrix having been made to the court, an order was made by the court committing the executrix for contempt for refusing the demand of the referees as aforesaid.

Counsel for relator contend that, by the terms of the will, said estate was transferred to the executrix as a trustee, and in that capacity alone she was holding and managing the same until the time for final distribution thereof; and that after the probate of the will, the filing and recording of the inventory and appraisement, the notice to creditors, and the report showing settlement of their claims, etc., as was shown by the executrix’s report of 1889, her further possession and management of said estate was in the cajjacity of trustee solely; and it is set forth in the application for writ of certiorari that she neglected to make reports of the condition of said estate to the probate court after the report of 1889, because her counsel advised her that no reports were required by law as she was merely trustee in charge of the property of said estate, awaiting time for distribution. But we shall not enter upon the consideration of that point, because we deem it unnecessary in this proceeding. This was not a ease for reference. The executrix made report concerning the affairs of said estate, covering the period intervening since her last report of 1889; and the same was not only uucontested, but was accompanied by the approval of all the heirs interested in said estate, all of whom were of the age of majority. Such was the showing, and therein no ground appears, in reference to said report, for the suspension or removal of the executrix; nor was there any objection raised in reference to the report on which an issue was formed for reference. (Probate Practice Act, §§ 113-15, 267-70; In re Russy’s Will, 14 N. Y. Supp. 177.) Nor were the allegations contained in the pleadings, on file in the district court as aforesaid, ground for the removal of the executrix. The matters there set forth pertained to transactions wherein, as alleged, the heirs interested in this estate have joined in executing a mortgage of their respective interests in certain property thereof, to secure certain indebtedness. If competent to act a person interested has power to assign or convey away his or her interests in an es*86tate as a private transaction. Whether that was done in legal form, and free from conditions which might invalidate the mortgage, are questions to be tried in that litigation, where the same are raised for adjudication. That controversy pertains to private transactions, apparently, by individuals who were of the age of majority, and, so far as shown by any adjudication, competent to act in that behalf. But if any fraud was perpetrated therein, which is not to be presumed at this stage of the action, that question should be adjudicated in that action. If the parties to said mortgage should be found to have made a valid encumbrance upon their interests, that finding would be based upon the fact that they were competent to act in that behalf. And if it were found that they had power to act, and had made a valid and binding transaction, in respect wherein their action was subject to their own control, it certainly would not be ground for depriving the executrix of her office in respect to said estate. Whatever may be the result of that adjudication the questions involved therein should be left to the adjudication of the court having jurisdiction of that action.

By the same order whereby the executrix was temporarily removed the court appointed Joseph N. Kenck, public administrator “as. special administrator to take charge of said estate, and execute the provisions of said will in reference to said estate,” and ordered “that special letters of administration, with the will annexed, issue to him.” Immediately thereafter, and as soon as said order came to the knowledge of the Ming brothers, John H. Ming petitioned the court to revoke the appointment of Kenck as such special administrator, and at the same time made formal application for appointment of John H. as special administrator of said estate. In that petition for such appointment John H. Ming was supported by James L. and Katherine L. Ming. But it appears that petition was not entertained, or, as it is alleged in these proceedings, no action was taken thereon, although the same was presented to the court, and the court was asked to hear and act upon said petition. Thereupon writ of certiorari was sued out on behalf of John H. and James L. Ming, to review the *87order of the court making such appointment of special administrator; relators insisting therein that the court had exceeded its jurisdiction in refusing to appoint John H. Ming as special administrator in case any exigency had arisen requiring the appointment of a special administrator of said estate. This proceeding was argued and submitted for determination along with the habeas corpus proceeding.

There being no appeal from an order appointing a special administrator, it has been held that certiorari would lie to review the jurisdictional question involved in such appointment. (Probate Practice Act, § 97, Comp. Stats., p. 296; In re Murphy, Pub. Admr., 11 Mont. 401.) On the subject of appointment of a special administrator the statute provides, in section 55 of the Probate Practice Act, that letters of administration “must be granted to some one or more of the persons hereinafter mentioned, who are respectively entitled thereto, in the following order: 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed; 2. The children; 3. The father and mother; 4. The brothers,” etc. This section prescribes, in ten subdivisions, the order in which certain persons have a right to succeed to the administration of an estate. Section 95 of the same act provides that “when there is delay in granting letters testamentary or of administration from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an administrator or executor dies or is suspended or removed, the probate judge must appoint a special administrator to collect and take charge of the estate of the decedent, in whatever county or counties the same may be found, and to exercise such other powers as may be necessary, for the preservation of the estate, or he may direct the public administrator of his county to take charge of the estate.” And section 97 of the same act further provides: “ In making the appointment of a special administrator the probate judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the appointment.” Under these statutory provisions we think it clear that, when *88occasion arises for appointment of a special administrator, the court must appoint from those in right of succession thereto, as provided by statute, if they do not waive their right by failing to apply, or by failing to insist upon or prosecute their application, or in some manner consenting to the appointment of another by the court; and the court is not at liberty to pass over those to whom the statute gives the prior right of both general and special administration, and appoint the public administrator as special administrator, or order the estate into the charge of the public administrator, when an exigency arises calling for appointment of a special administrator. The only ground for contention that the court has power or discretion to ignore those stauding in prior right to administer, either generally or specially, and put the estate into possession of the public administrator, is the clause of section 95, which, after enumerating the occasions for the appointment of a special administrator, provides: “ Or he may direct the public administrator of his county to take charge of the estate.” No doubt that is a wise provision, for there are cases wherein no one is entitled to general or special appointment, precedent to the public administrator. In such cases the court would not be absolutely bound to appoint a special administrator, but might direct the estate into the charge of the public administrator. But sections 55 and 97 declare, without condition or proviso, that when occasion arises for appointment of an administrator, either general or special, the court must appoint from the heirs and relatives of decedent, in the order prescribed; and to hold that said clause of section 95 empowered the court, whenever occasion arose for appointment of a special administrator, to put the estate in charge of the public administrator, notwithstanding the heirs and distributees of decedent applied, would, in effect, insert into section 97, following the statutory declaration that the court, “in making appointment of special administrator, must give preference to the persons entitled to letters testamentary or of administration,” a proviso to this effect: “Unless the court deems it preferable to put the estate into the charge of the public administrator.” No such proviso is found there. Moreover, the provisions of all the sections of the statute on this subject, read together, clearly *89manifest an intention on the part of the legislature that the “ next of kin entitled to share in the distribution of the es ate” in the order prescribed shall have a right, precedent and paramount to strangers, to administer the estate in all cases, either as general or special administrator.

In' relation to the Davis estate occasion arose for the appointment of a special administrator. There were next of kin entitled to apply for such appointment, such as brothers and nephews of decedent; but the court went outside of those relatives and distributees of the estate, and appointed a person whom the court deemed suitable for that office. Thereupon all the heirs and distributees who could have demanded such appointment precedent to the one appointe¶, as well as to the public administrator, tacitly acquiesced in the appointment made by the court. One of the heirs who had applied for appointment as special administrator ceased to prosecute his petition, and no other relative of decedent who might have claimed such appointment applied for the same. Nothwithstanding this tacit or implied concurrence of all the heirs in the appointment made by the court, the public administrator sought to overcome that arrangement, and compel appointment of himself. The conclusion and holding of this court in that case (State ex rel. Murphy, 11 Mont. 401) was that, as between the public administrator and the appointee, under such conditions, the public administrator was not entitled to the appointment. That case involved no such question as is here presented; nor was there involved therein the consideration of the question whether the appointment of the public administrator (if it had been made in that case) could have been sustained against the demand of heirs and distributees for appointment, in the order provided by statute. But to sustain the appointment of the public administrator in this case would be to hold that, in case the court had put the vast estate of Andrew J. Davis into the charge of the public administrator, when occasion arose for the appointment of a special administrator, that appointment must have been sustained against the demand of the heirs and distributees for the appointment, even though all of them joined in petitioning the court for the appointment of one or *90more of them, as provided by statute. Such holding, we think, would be entirely contrary to the spirit and intendment of the statute upon this subject; and therefore we hold that-, in appointing the public administrator or special administrator, or in ordering the estate into the public administrator’s charge in this case, while one next of kin, to whom the statute had given prior right to the office of both general and special administrator, sought such appointment, the court exceeded its jurisdiction.

As a result of our consideration of the proceedings here presented it will be ordered: 1. That petitioner in the writ of habeas corpus, Katherine L. Ming, be discharged from custody; 2. That the order of the probate court appointing Joseph N. Kenck as special administrator of said estate, with the will annexed, be vacated and set aside.

Pemberton, C. J., concurs.

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