CHAPTER LIX. REMOVAL OF PERSONAL REPRESENTATIVE FROM OFFICE. § 1534. Tenure of office of personal representative. § 1535. General causes for removal from office. § 1536. What court has jurisdiction. § 1537. Who may institute proceedings. §1538. Nature of the proceedings. § 1539. Costs and counsel fees in resisting application for removal. § 1540. Effect of removal from office. § 1541. The same subject: Where the executor is also a trustee. § 1542. Showing necessary in order to remove representative: Discretion of court. § 1543. The same subject: Generally the rule applies alike to executors and administrators. § 1544. Effect of failure to give a bond. § 1545. Effect of failure to give notice to creditors. § 1546. Effect of failure to file account. § 1547. Absence from the jurisdiction as a cause for removal. § 1548. Where appointment is secured through misrepresentation or suppression of facts. § 1549. Where personal interests of representative are adverse to the interests of the estate. § 1550. Insolvency of representative as a ground for removal. § 1551. Waste or mismanagement a cause for removal. § 1552. Refusing to take proper steps for the benefit of the estate. § 1553. That estate may be benefited no excuse for failure to perform duties. § 1534. Tenure of Office of Personal Representative. Except where the representative is appointed for some special or limited purpose,1 his powers and duties continue until his accounts have been finally settled and the 1 As to special or limited administration, see §§ 1276-1278. estate distributed. He is then entitled to an order of discharge. He can not be discharged prior to such time except for cause.2 In some jurisdictions, however, the statutes limit the period within which an executor or administrator may exercise the functions of the office, except where the court, under the statutes, may extend the period. § 1535. General Causes for Removal from Office. The subject of the qualifications, or more strictly speaking the disqualifications, of executors and administrators has herein before been fully treated. That subject is intimately related with that of removal. It may be said as a general proposition that any matter arising after the appointment of a personal representative which would have affected his competency to have received the appointment originally, may be urged as a cause for his removal.1 An executor or administrator may be removed only for cause, and the grounds for removal are usually stated in 2 McClaskey v. Barr, 79 Fed. 408; Blanchard v. Williamson, 70 Ill. 647; Collier v. Cross, 20 Ga. 1. At common law the powers of an unmarried woman acting as executrix or administratrix terminated upon her marriage, but the matter is now generally regulated by statute, see § 1202. After acceptance of the office, an executor or administrator can not resign except with the sanction of the court, see § 1225. As to the manner in which a personal representative may renounce his office, see § 1226. 3 Succession of Waters, 12 La. Ann. 97; Ferguson v. Glaze, 10 La. Ann. 635; Brown v. Williams, 16 La. 344; Moody v. Looscan (Tex. Civ. App.), 44 S. W. 621; Ball v. Ball's Estate (Tex. Civ. App.), 45 S. W. 605; Ford v. Ford, 88 Wis. 122, 59 N. W. 464; Mackin v. Hobbs, 116 Wis. 528, 93 N. W. 462. 4 See §§ 1191-1215. As to effect of appointee failing to take the oath of office, see § 1347. the statute. The causes for removal of a personal representative from office, the same as the disqualifications which preclude one from receiving the appointment originally from the court, are those expressed in the statute. In order to remove a personal representative from his position of trust, cause therefor as set forth in the statute must be shown. The statutes, however, generally include, among other causes for removal, not only wrong doing, but neglect of duty, so that the scope of the subject is broad. In some jurisdictions the statutes provide that an executor or administrator may be removed when he has become of unsound mind, has been convicted of a felony or of a misdemeanor involving moral turpitude, has in any way been unfaithful to or neglected his trust," or has committed or is about to commit a fraud on the estate." §1536. What Court Has Jurisdiction. Jurisdiction for the removal of an executor or administrator is generally vested in the court making the appointment, such as the probate court, the district court," or the orphans' court.10 In New York the surrogate only 5 Miller v. Hider, 9 Colo. App. 50, 47 Pac. 406; Munroe v. People, 102 Ill. 406; Davis' Admr. v. Davis, 162 Ky. 316, 172 S. W. 665; In re McDonald's Estate, 160 App. Div. (N. Y.) 86, 145 N. Y. Supp. 267, reversing 82 Misc. Rep. (N. Y.) 135, 143 N. Y. Supp. 775, and affirmed, 211 N. Y. 272, 105 N. E. 407; Sayles v. Steere (R. I.), 85 Atl. 929; Tompkins v. Poff, 120 Va. 162, 90 S. E. 630. 6 Knight v. Hamaker, 40 Ore. 424, 67 Pac. 107. Removing an executor on the ground of insanity, see Michigan Trust Co. v. Ferry, 228 U. S. 346, 57 L. Ed. 867, 33 Sup. Ct. 550, reversing 175 Fed. 681. 7 In re Rathgeb's Estate, 125 Cal. 302, 57 Pac. 1010. 8 Dow v. Simpson, 17 N. M. 357, 132 Pac. 568; In re Jones' Estate, 102 S. C. 110, 86 S. E. 203. 9 In re Dolenty's Estate (Mannix v. Dolenty), 53 Mont. 33, 161 Pac. 524. 10 Perrett's Estate, 14 Pa. Super. Ct. 611. has the authority to remove the personal representative.11 Such jurisdiction is not vested in courts of chancery.12 § 1537. Who May Institute Proceedings. The general rule is that only those who have an interest in the estate can apply to the probate court for the removal of an executor or administrator.18 Thus such an application may be made by an heir,14 the surviving spouse of the decedent,15 or a creditor of the estate.16 But one who has been sued by an administrator can not for that reason petition to revoke his letters of administration.17 Where one has been appointed administrator of an estate upon the supposition that the decedent died intestate, such letters of administration should be revoked where the will of the decedent is subsequently discovered and admitted to probate. In such a case the administrator merely by virtue of his appointment as administrator has no right of appeal, since he is not interested either in the will or in the estate.18 But it is often provided by statute that the probate court may, on its own motion, institute proceedings for the removal of the personal rep 11 Hood v. Hood, 2 Demarest 583; affirmed, 98 N. Y. 363; In re M'Donald's Estate, 160 App. Div. (N. Y.) 86, 145 N. Y. Supp. 267, reversing 82 Misc. Rep. (N. Y.) 135, 143 N. Y. Supp. 775. 12 Bentley v. Dixon, 60 N. J. Eq 353, 47 Atl. 689. See, also, Mannhardt v. Illinois Staats Zeitung Co., 90 Ill. App. 315. 13 Gibson v. Wade, 121 Ark. 190, 180 S. W. 341; Perrett's Estate, 14 Pa. Super. Ct. 611. 14 In re Partridge's Estate, 31 Ore. 297, 51 Pac. 82; Grissinger's Appeal, 4 Walk. (Pa.) 374. 15 Evans v. Buchanan, 15 Ind. 438. 16 Knight v. Hamaker, 40 Ore. 424, 67 Pac. 107. 17 Missouri Pac. Ry. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283; Missouri Pac. Ry. Co. v. Jay's Estate, 53 Neb. 747, 74 N. W. 259. 18 Cairns v. Donahey, 59 Wash, 130, 109 Pac. 334, 335. resentative from office when it has come to the attention of the court that the representative has been guilty of some act which would justify his removal.19 A proceeding for the removal of an administrator because he has been improvidently appointed or because he has been guilty of a conspiracy to waste the estate, may be instituted by the consular agent without any treaty provision authorizing it, it being an inherent right in virtue of his consular office.20 §1538. Nature of the Proceedings. The tenure of office of an executor or administrator is until after final accounting and distribution, except that he may be removed from office for cause. An application for the revocation of letters testamentary or of administration is neither a civil action nor a special proceeding. Its purpose is not to litigate rights or liabilities of adverse parties, but to require one who is charged by law with special duties and responsibilities to perform the obligations of the trust according to law and in the interest of those entitled to the benefit of the estate, and in case of default his letters may be revoked.21 It is not a proceeding to punish the personal representative, but to protect 19 Crawford v. Tyson, 46 Ala. 299; In re Kelley's Estate, 122 Cal. 379, 55 Pac. 136; In re Partridge's Estate, 31 Ore. 297, 51 Pac. 82; In re Marks & Co.'s Estate, 66 Ore. 340, 133 Pac. 777; Kuck v. Dixon (Tex. Civ. App.), 127 S. W. 910; Sayles' Ann. Civ. Stats. 1897, art. 2027. Where the order of removal is made in a proceeding not instituted for the purpose, the court on appeal will not disturb the removal where it appears to have been made upon sufficient cause.In re Partridge's Estate, 31 Ore. 297, 51 Pac. 82. 20 Carpigiani v. Hall, 172 Ala. 287, Ann. Cas. 1913D, 651, 55 So. 248. 21 Edwards v. Cobb, 95 N. C. 4; In re Battle's Estate, 158 N. C. 388, 74 S. E. 23. |