The opinion of the court was delivered by
Hoyt, J.
Plaintiff, as administrator of the estate of Timothy P. Denney, deceased, brought this action to recover the possession of certain real property therein described, on the ground that it was a part of said estate. The claim to possession grew out of the following state of facts : In the life time of said Timothy P. Denney he conveyed the property in question, with several other tracts, to the defendant. Thereafter an action was brought by said Denney to have it declared that the said defendant held these tracts of land in trust for him. Thé district court of the territory in which the action was commenced made a decree substantially as prayed for by the plaintiff, and as a part thereof directed that the defendant should within a time limited make a deed of the premises to the plaintiff. This deed was made by defendant, who at the time, by reservation and declaration, clearly showed that he only made it because of the requirements of the decree and not for the purpose of affecting the rights of the parties as determined upon appeal. An appeal to the supreme court of the territory was afterward taken, [220]*220where such proceedings were had that the judgment of the ■district court was affirmed. From the judgment of affirmance an appeal was taken to the supreme court of the United States.
During the pendency of the cause in the supreme court of the territory the plaintiff died, and his wife, Elizabeth Denney, as executrix of his last will, was substituted as plaintiff. In the supreme court of the United States a stipulation was entered into by the attorneys for the respective parties, in which it was agreed that the defendant should be entitled to the premises in controversy in this case, and should receive a deed therefor from the plaintiff; that the plaintiff should be entitled to the possession of the other tracts which were the subject matter of the proceedings in that cause, and should receive a deed therefor from the defendant ; that the defendant should pay the plaintiff the sum of $2,000; that the respective parties should pay their own costs and that the appeal should be dismissed. That the terms of this stipulation were fully complied with, and, upon suggestion to that effect, an order made by the supreme court of the United States dismissing the appeal.
The defendant relies upon these proceedings to establish title in himself. He also relies upon the statute of limitations. The plaintiff contends that this stipulation, and the proceedings had in pursuance thereof, could not affect the title to the property in question. This contention is based upon three principal grounds ; First, that it does not appear that the attorneys who signed the stipulation were authorized by their respective clients so to do ; second, that under our statutes an executor or administrator of an estate has no authority to compromise a suit of any kind, excepting when authorized so to do by order of the probate court in which the administration of the estate is pending ; and third, that even if it be conceded that such a compromise may be made in a suit in which the title to real property is not involved, it cannot be done when the effect of the compromise is to pass title to real estate.
As to the first proposition, it is sufficient to say that, [221]*221though it may not appear from the transcript that the attorneys who signed the stipulation had been authorized so to-do, yet it does appear that their action in so doing was fully ratified by their respective clients.
As to the next proposition, it is contended that since our statutes as to the settlement of estates require that the action of its representative, in compromising claims in favor of or against the estate, be subject to the approval of the probate court, it should be held that his action in the conduct of suits for or against the estate should likewise be subject to its approval. There is much force in this contention, but it seems to us that there should be a distinction drawn between the compromise of claims out of court and the conduct of a litigated case in court. In the latter case the representative is often called upon to act at once and without any opportunity of consulting the probate court, and his action once taken and acted upon by the court in which the action is pending is generally beyond recall, should the probate court thereafter disapprove of the course taken. It must follow that from the very necessities of the case such representative has to act without consulting the probate court, and under such circumstances that his action will be final without its approval. And this being so as to. his action in conducting a case, it should follow that if during its progress an opportunity to compromise is offered, the representative should have power to act in reference thereto without the control of the probate court. It may well happen in the conduct of a case that a favorable compromise will be offered to the representative of the estate, and that to give it the benefit of such compromise he must accept or reject it at once, and if he has not the power to act until he can confer with the probate court the opportunity to accept the advantageous compromise may be entirely lost. The interests of the estate are necessarily committed almost entirely to the administrator so far as they may be affected by issues joined in an action, and within those issues he should be given full power to adjust matters, as between the estate and the other party to the action. By [222]*222his neglect of the interests of the estate in the prosecution or defense of the action its rights could be lost beyond the power of the probate court to save them, and if its rights can be affected by the negative action of the administrator in the conduct of the case, there is no reason why he should not have the right to affect them by his positive action as to the subject matter in litigation. Taking into consideration all of our statutes in reference to the settlement of estates, we feel compelled to hold that, in an action prosecuted or defended in good faith by a representative thereof he has power to adjust its rights with the contending party so far as they might be affected in the action if prosecuted to judgment.
And we can see no good reason for limiting such power to cases not involving title to real estate.’ If the power to compromise exists, it should only be limited by the issues made by the pleadings. In the case in which the stipulation in question was filed, the title to the land therein described was directly involved, and if it had been prosecuted to judgment might have resulted in the defeat of all claims thereto on the part of the estate. Such being the fact, it was within the authority of the representative to make the compromise provided for in the stipulation.
Besides, the effect of the stipulation was not to transfer the legal title of the property of the estate. At the beginning of the controversy the legal title was in the defendant, and it was still there at the date of the compromise, excepting so far as it was affected by the deed made by him in pursuance of the decree rendered by the district court. And it clearly appears from the record that such deed was not made for the purpose of affecting the title of the property, or the right of the court to fully adjudicate in reference thereto upon the appeal which was thereafter taken.
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The opinion of the court was delivered by
Hoyt, J.
Plaintiff, as administrator of the estate of Timothy P. Denney, deceased, brought this action to recover the possession of certain real property therein described, on the ground that it was a part of said estate. The claim to possession grew out of the following state of facts : In the life time of said Timothy P. Denney he conveyed the property in question, with several other tracts, to the defendant. Thereafter an action was brought by said Denney to have it declared that the said defendant held these tracts of land in trust for him. Thé district court of the territory in which the action was commenced made a decree substantially as prayed for by the plaintiff, and as a part thereof directed that the defendant should within a time limited make a deed of the premises to the plaintiff. This deed was made by defendant, who at the time, by reservation and declaration, clearly showed that he only made it because of the requirements of the decree and not for the purpose of affecting the rights of the parties as determined upon appeal. An appeal to the supreme court of the territory was afterward taken, [220]*220where such proceedings were had that the judgment of the ■district court was affirmed. From the judgment of affirmance an appeal was taken to the supreme court of the United States.
During the pendency of the cause in the supreme court of the territory the plaintiff died, and his wife, Elizabeth Denney, as executrix of his last will, was substituted as plaintiff. In the supreme court of the United States a stipulation was entered into by the attorneys for the respective parties, in which it was agreed that the defendant should be entitled to the premises in controversy in this case, and should receive a deed therefor from the plaintiff; that the plaintiff should be entitled to the possession of the other tracts which were the subject matter of the proceedings in that cause, and should receive a deed therefor from the defendant ; that the defendant should pay the plaintiff the sum of $2,000; that the respective parties should pay their own costs and that the appeal should be dismissed. That the terms of this stipulation were fully complied with, and, upon suggestion to that effect, an order made by the supreme court of the United States dismissing the appeal.
The defendant relies upon these proceedings to establish title in himself. He also relies upon the statute of limitations. The plaintiff contends that this stipulation, and the proceedings had in pursuance thereof, could not affect the title to the property in question. This contention is based upon three principal grounds ; First, that it does not appear that the attorneys who signed the stipulation were authorized by their respective clients so to do ; second, that under our statutes an executor or administrator of an estate has no authority to compromise a suit of any kind, excepting when authorized so to do by order of the probate court in which the administration of the estate is pending ; and third, that even if it be conceded that such a compromise may be made in a suit in which the title to real property is not involved, it cannot be done when the effect of the compromise is to pass title to real estate.
As to the first proposition, it is sufficient to say that, [221]*221though it may not appear from the transcript that the attorneys who signed the stipulation had been authorized so to-do, yet it does appear that their action in so doing was fully ratified by their respective clients.
As to the next proposition, it is contended that since our statutes as to the settlement of estates require that the action of its representative, in compromising claims in favor of or against the estate, be subject to the approval of the probate court, it should be held that his action in the conduct of suits for or against the estate should likewise be subject to its approval. There is much force in this contention, but it seems to us that there should be a distinction drawn between the compromise of claims out of court and the conduct of a litigated case in court. In the latter case the representative is often called upon to act at once and without any opportunity of consulting the probate court, and his action once taken and acted upon by the court in which the action is pending is generally beyond recall, should the probate court thereafter disapprove of the course taken. It must follow that from the very necessities of the case such representative has to act without consulting the probate court, and under such circumstances that his action will be final without its approval. And this being so as to. his action in conducting a case, it should follow that if during its progress an opportunity to compromise is offered, the representative should have power to act in reference thereto without the control of the probate court. It may well happen in the conduct of a case that a favorable compromise will be offered to the representative of the estate, and that to give it the benefit of such compromise he must accept or reject it at once, and if he has not the power to act until he can confer with the probate court the opportunity to accept the advantageous compromise may be entirely lost. The interests of the estate are necessarily committed almost entirely to the administrator so far as they may be affected by issues joined in an action, and within those issues he should be given full power to adjust matters, as between the estate and the other party to the action. By [222]*222his neglect of the interests of the estate in the prosecution or defense of the action its rights could be lost beyond the power of the probate court to save them, and if its rights can be affected by the negative action of the administrator in the conduct of the case, there is no reason why he should not have the right to affect them by his positive action as to the subject matter in litigation. Taking into consideration all of our statutes in reference to the settlement of estates, we feel compelled to hold that, in an action prosecuted or defended in good faith by a representative thereof he has power to adjust its rights with the contending party so far as they might be affected in the action if prosecuted to judgment.
And we can see no good reason for limiting such power to cases not involving title to real estate.’ If the power to compromise exists, it should only be limited by the issues made by the pleadings. In the case in which the stipulation in question was filed, the title to the land therein described was directly involved, and if it had been prosecuted to judgment might have resulted in the defeat of all claims thereto on the part of the estate. Such being the fact, it was within the authority of the representative to make the compromise provided for in the stipulation.
Besides, the effect of the stipulation was not to transfer the legal title of the property of the estate. At the beginning of the controversy the legal title was in the defendant, and it was still there at the date of the compromise, excepting so far as it was affected by the deed made by him in pursuance of the decree rendered by the district court. And it clearly appears from the record that such deed was not made for the purpose of affecting the title of the property, or the right of the court to fully adjudicate in reference thereto upon the appeal which was thereafter taken. Hence, for the purposes of the action which was Tending in the Supreme Court of the United States at the time the stipulation was signed, this deed could have no force, and the cause should be treated as though the legal title yet remained in the defendant. It follows that in what was done in pursu[223]*223anee of the stipulation, the legal title to certain pieces of property was acquired by the estate, and in consideration thereof its equitable title to certain other property was surrendered.
We have come to this conclusion without giving any force to the fact that this suit was pending before the death of Timothy P. Denney, and have treated it as though it were a suit commenced by the representative of his estate after his death. But from the fact that it was commenced before his death, and that under our statute his representative took his place in the action after his death, it could well be argued that she so took it with the same powers to control its course and prosecute or compromise it as he would have had if he had lived. If he had lived there would have been no doubt as to his power to compromise the matter with the defendant, and by reason of his death pending the action the rights of the parties should not be changed.
Much of the argument of the appellant has been founded upon the fact that since the will of Timothy P. Denney, which devised all of his property to his wife, who as executrix compromised the suit, made no reference to his children, or grandchildren, he died intestate as to them, and for that reason she could not convey the interests of the estate. This proposition is no doubt true so far as anything she might do as devisee under the will, and in what we have said we have given no force whatever to her rights as such devisee, but have founded them entirely upon her authority as the representative of the estate.
The judgment of the superior court will be affirmed.
Stiles and Anders, JJ., concur.