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Opinion of the Court.

[43 App.

death of the deceased and the granting of letters testamentary or of administration, shall not be counted as part of said time of limitation."

There is nothing in the record to indicate what steps were taken by appellant to protect his rights prior to bringing this action. The record is strangely silent as to when Stilson Hutchins died; when the collector was appointed; what appellant has done in relation to this particular claim; whether the cause of action accrued before or after the death of Hutchins, and the present status of the probate proceedings; all of which are important in connection with the subject of limitations. Section 336 of the Code [31 Stat. at L. 1243, chap. 854] provides for the proving and presentation of accounts, which could be done with a collector acting as administrator pendente lite. If appellant availed itself of the right thus afforded the proving and presentation of the claim in accordance with the provisions of the statute would operate to suspend the running of the statute of limitations. In Robinson v. Robinson, 173 Mass. 233, 53 N. E. 854, Mr. Justice Holmes, delivering the opinion of the court, said: "The two years from the filing of the administrator's bond within which a suit must be begun in order not to be barred by the special statute of limitations, Pub. Stat. chap. 136, sec. 9, expired on May 11, 1898. Statements of the appellant's claim were left with the register, and indorsed by him as presented for allowance on May 7, 1898. We are of opinion that this was equivalent to beginning suit, and avoided the bar. See Pub. Stat. chap. 137, secs. 2-4, 10; Guild v. Hale, 15 Mass. 455, 458; Aiken v. Morse, 104 Mass. 277; Tarbell v. Parker, 106 Mass. 347, 349; Morrell v. Old Colony R. Co. 158 Mass. 69, 32 N. E. 1030." To the same effect are Nicholls-Shepard Co. v. Donavon, 67 Mo. App. 286; Hinton v. Pritchard, 126 N. C. 8, 35 S. E. 127; Fort v. Blagg, 38 Ark. 471.

Without deciding the point, it would seem that, when a claim is filed, and the running of the general statute of limitations thereby stopped, the special statute (D. C. Code, sec. 348 [31 Stat. at L. 1245, chap. 854]) limiting the time for bringing suits after disallowance of claim to nine months would not be

Statement of the Case.

D. C.]

gin to run until an executor or administrator has been appointed. who is, in law, capable of being sued.

The judgment is affirmed with costs.

Affirmed.

A motion for a writ of error to the Supreme Court of the United States was denied March 8, 1915.

MINIGGIO r. HUTCHINS.

EXECUTORS AND ADMINISTRATORS; CLAIMS AGAINST DECEDENTS' ESTATES; PROBATE COURT, JURISDICTION OF.

1. The probate court is without jurisdiction to make an order directing an executor, administrator, or collector of a decedent's estate to pay the claim of a creditor of the estate. (Citing Cook v. Speare, 13 App. D. C. 446.)

2. The jurisdiction of the supreme court of the District of Columbia, holding a probate term, is not different from the jurisdiction possessed by the orphans' court of Maryland, except where specially provided by statute. (Citing Richardson v. Daggett, 24 App. D. C. 440.)

No. 2735. Submitted November 4, 1914. Decided February 1, 1915.

HEARING on an appeal by a creditor of a decedent's estate from an order of the Supreme Court of the District of Columbia, holding a probate court, dismissing a petition to compel the collector of the estate to pay his claim. Affirmed.

The COURT in the opinion stated the facts as follows:

This case is closely analogous to Berry & W. Co. v. Dante, ante, 110, this day decided. The question here involved is whether the probate court erred in refusing to grant the prayer of the petition of appellant, petitioner below, wherein the court was asked to make an order compelling the collector of the

Opinion of the Court.

[43 App. estate of Stilson IIutchins to pay petitioner's claim against the

estate.

It appears that, during the lifetime of Hutchins, William J. Dante was appointed trustee in equity of the estate of Hutchins; that claims were paid by the trustee under the order of the equity court; that other claims were referred to the auditor of the court for report, among which was the one in issue; that the auditor reported favorably on this claim, and that on the death of Hutchins, Dante was appointed collector of the estate. Petitioner brought a suit to recover this claim against Hutchins during his lifetime, which suit stands undisposed of for lack of service upon the defendant. No attempt appears to have been made to revive the action.

When the present petition was presented in the probate court, the collector answered, expressing his willingness to obey any order the court might make in the premises; but an answer was filed by Walter Stilson Hutchins, one of the sons of decedent, in which he objected to the payment of this claim, and contested the jurisdiction of the probate court to compel the collector to pay contested claims against the estate. On hearing, the court entered an order dismissing the petition, from which this appeal was taken.

Mr. Corry M. Stadden for the appellant.

Mr. Edwin C. Brandenburg, Mr. Clarence A. Brandenburg, and Mr. F. Walter Brandenburg for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

The only question, therefore, is the jurisdiction of the probate court to entertain this action. Nowhere in the statutes is the probate court vested with authority to compel an executor or administrator to pay a claim against an estate. Under sec. 330 of the Code [31 Stat. at L. 1243, chap. 854], the approval of a claim properly proved relieves the executor or administrator from liability if he elects to pay it; but, by sec. 342 [31 Stat. at

D. C.]

Opinion of the Court.

L. 1244, chap. 854], he may contest it at law, and, in such ac tion, the approval of the probate court by sec. 343 is deprived of even evidentiary effect. The jurisdiction is the same as to a collector or administrator pendente lite.

It is settled in this District that the probate court is without jurisdiction to compel an executor or administrator to pay a claim asserted against a decedent's estate. In Townshend v. Brooke, 9 Gill, 90, the court, considering the Maryland act of 1798, which was the law of this District for almost a century, and with but slight modification was carried into our Code, held that the orphans' court was a tribunal of special and limited. jurisdiction, and in respect of the power to enforce the payment of claims, said: "After a careful examination of the acts of assembly, bearing upon the powers and jurisdiction of the orphans' courts, we can find no clause or provision which can be interpreted as conferring upon those tribunals authority to direct a collector pendente lite, to pay a sum of money to the persons named as executors, in a paper purporting to be a last will and testament, to be appropriated as fees to counsel employed to resist a caveat interposed before the paper in controversy was admitted to probate, and consequently before letters testamentary were committed to the persons named therein as executors." This construction of the act of 1798 has been adopted by this court. Cook v. Speare, 13 App. D. C. 446.

The provisions of the Maryland act of 1798, in respect of the matter here involved, in so far as enlarging the jurisdiction of the probate court, has not been changed. The jurisdiction of the probate court, except where specially provided by statute,

is

not different from the jurisdiction and power possessed by the orphans' court. Richardson v. Daggett, 24 App. D. C. 440,

444.

The order of the court below is affirmed with costs.

Affirmed.

Syllabus.

[43 App.

TERMINAL TAXICAB COMPANY v. HARDING.*

COMMON CARRIERS; PUBLIC UTILITIES; AUTOMOBILES,

1. A taxicab company is an agency for public use for the conveyance of persons or property within the District of Columbia for hire, within the meaning of the act of Congress of March 14, 1913 (37 Stat. at L. 974, chap. 150), and, as such, subject to the jurisdiction of the Public Utilities Commission of the District as a public utility, where it transports passengers for hire by means of automobiles from and to a union railroad station under a contract with the company owning the station, whereby the latter receives a portion of its gross receipts; is also under contract with hotels to furnish livery service for guests, and maintains garages from which its automobiles may be ordered by telephone; although every customer is entitled to the exclusive use of the vehicle hired and has the right to direct the destination of the vehicle at his pleasure, and although it asserts the right to refuse to carry any person applying for a vehicle, and does not solicit patronpublic streets.

age on

2. Where it is claimed that the Public Utilities Commission of this District has jurisdiction over a taxicab company as a public utility under the act of Congress creating the Commission, it is no defense to such a company which denies the jurisdiction of the Commission, that the Commission has failed to assume jurisdiction over others engaged in the same character of business; the question being, whether the company, and not another, is a common carrier.

No. 2691. Submitted November 5, 1914. Decided February 1, 1915.

HEARING on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, dismissing a bill of complaint against the members of the Public Utilities Commission of the District to restrain them from assuming jurisdiction over the plaintiff as a public utility under the act of Congress creating that Commission. Affirmed.

*Common Carriers.-For authorities passing upon cartman, baggage transfer company, etc., as common carrier, see notes to Anniston Transfer Co. v. Gurley, 34 L.R.A. 137, and Lloyd v. Haugh K. Storage & Transfer Co. 21 L.R.A. (N.S.) 188.

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