Ex parte Smith

The provisions of sec. 128 of the Code of Civil Procedure, respecting the incidental powers of Courts, and of sec. 1209 and following, defining contempts, and providing for their punishment, are as applicable to the Probate as to the District Courts. Among the powers enumerated in sec. 128 is the power of Courts to compel obedience to their judgment, orders, and process. The fifth subdivision of sec. 1209 declares that disobedience of any lawful judgment, order, or process of a Court is a contempt of the authority of the Court; and other sections of that article provide for the punishment of contempts.

The order which the petitioner disobeyed is the order of final distribution of the estate of B. D. Taylor, deceased, the petitioner being one of the executors of the last will and testament of said deceased; and this comes within the fifth subdivision of sec. 1209, above cited.

It being admitted that the Court had acquired jurisdiction of the proceedings instituted for the purpose of enforcing obedience to the order, its decision upon the issues of fact tendered in those proceedings is final, and alleged errors therein occurring are not the subjects of review under this writ. The review extends only to the question whether the Probate Court regularly pursued its authority. That Court having determined that the petitioner was guilty of disobedience of the order of final distribution, the only question remaining for consideration is whether the Court had authority to enforce obedience to the order of distribution, by ordering the petitioner to be imprisoned for contempt until he should obey said order.

It is manifest that the proceedings for the settlement of the estate of Taylor, deceased, are not a civil action, within the meaning of sec. 15, art. 1 of the Constitution; nor is the amount of money which by the order of distribution the executors are required to pay over to the distributees, a debt due from the executors to the distributees; and therefore the case *208does not fall within the clause of that section of the Constitution inhibiting imprisonment for debt in a civil action. The Code does not provide for the issuing of an execution for the enforcement of an order of distribution; and it is apparent that in many cases such a remedy would be wholly inadequate. The executors hold the property of the estate in trust for the creditors and heirs and others interested in the estate, and as such trustees their obedience to the orders of the Probate Court may be compelled by proceedings for contempt, as fully as the same may be done by the District Court in the execution of a trust of which it has cognizance. A further and perhaps stronger argument in support of the proceedings in this cause may be deduced from the relation which the petitioner bears to the Probate Court. An executor, although holding the assets of the estate in trust, as above stated, is not merely a trustee, but is in one sense an officer of the Court. The Court makes and may revoke his appointment, and usually all his acts are performed under or subject to the direction of the Court, and have no validity until the Court gives its approval.. In respect to those matters in which he acts only under the 'direction and subject to the approval of the Court, he may be regarded as an officer of the Court, and no argument is needed to show that as an officer his obedience to the orders of the Court may be enforced by attachment for contempt..

Questions in respect to the release of the executor from the obligation to comply with the order, or his inability to comply with, it, cannot be considered by this Court under this writ.

Writ dismissed.