do justice to the creditors, the proper procedure is to remove him from office and appoint another in his stead.5+ And if an executor or administrator procures for himself a conveyance of property to which the estate is entitled, he thereby commits a fraud upon the estate which justifies his removal from office.55

Where one, upon his being appointed administrator, advised those interested in the estate that he did not have any claim against the estate and would not assert one, equity and good conscience require that if he thereafter files a claim against the estate he should give interested parties notice of this fact and thus afford them an opportunity to contest it, because the relations between the administrator and those interested in the estate are of a fiduciary character.58

§ 1550. Insolvency of Representative as a Ground for Removal. The insolvency of the personal representative has been declared to be a ground for his removal," and the fact that the estate is insolvent is no defense." 58

54 In re Dolenty's Estate (Mannix v. Dolenty), 53 Mont. 33, 161 Pac. 524.

See, also, Deeble v. Alerton, 58 Colo. 166, 143 Pac. 1096.

55 Mesmer v. Jenkins, 61 Cal. 151, 153, 154; Estate of Rathgeb, 125 Cal. 302, 307, 57 Pac. 1010; Lett v. Emmett, 37 N. J. Eq. 535; Kellberg's Appeal, 86 Pa. St. 129.

Letters of administration may be revoked where the administrator, prior to the death of the decedent and at a time when her competency was doubtful, obtained from her a gift of all the property

of the estate.-In re Kirchner, 89 Misc. Rep. (N. Y.) 717, 153 N..Y. Supp. 1091.

56 Taylor v. Marshall, 56 Colo. 214, 138 Pac. 25.

57 Gill v. Riley (Ky.), 90 S. W. 2; In re Truesdell's Estate, 40 Misc. Rep. (N. Y.) 336, 81 N. Y. Supp. 1038; In re Hickey, 34 Misc. Rep. 360, 69 N. Y. Supp. 844; In re Sharpless' Estate, 209 Pa, 69, 57 Atl. 1128.

As to insolvency or poverty as a disqualification to be granted let ters of administration, see § 1210. 58 Grissinger's Appeal, 4 Walk. (Pa.) 374.

§ 1551. Waste or Mismanagement a Cause for Removal.

Waste or mismanagement is a common cause for the removal of a personal representative from office.59 But failure or refusal to pay a debt alleged to be due a creditor does not constitute such mismanagement of the estate as to be ground for the revocation of letters.60 The words "waste or improper application" in a statute setting forth the causes for removal mean a squandering or misapplication of the funds of the estate whereby the estate is lost or diminished in value.61

It is mismanagement and cause for removal from office for an executor or administrator to invest funds of the estate in securities not authorized by the statute;62 and the rule is the same where the representative uses assets of the estate in paying additional margins on stock where the account is speculative, even though the decedent had opened the account in his lifetime.68

An executor or administrator must comply with all proper orders of the court, but where an order directing him to sell certain real estate is void, the court can not remove him for refusing to comply with such order.64

59 Miller v. Hider, 9 Colo. App. 50, 47 Pac. 406; Haynes v. Carpenter, 86 Mo. App. 30; Lucich v. Medin, 3 Nev. 93, 93 Am. Dec. 376; In re Heyen's Estate, 40 Misc. Rep. (N. Y.) 511, 82 N. Y. Supp. 791.

60 Zipperer v. La Roche, 145 Ga. 829, 90 S. E. 40.

61 In re Doscher, 165 App. Div. (N. Y.) 193, 151 N. Y. Supp. 76.

Where an administrator allowed taxes on the property of the estate to go delinquent, but subsequently

redeemed the property and charged himself with the penalties, a petition to remove him is properly denied.-Pfefferle v. Herr, 75 N. J. Eq. 219, 138 Am. St. Rep. 518, 71 Atl. 689.

62 In re Avery's Estate, 45 Misc. Rep. (N. Y.) 529, 92 N. Y. Supp. 974.

63 In re Drummond's Estate, 100 Misc. Rep. (N. Y.) 78, 165 N. Y. Supp. 78.

64 Snook v. Zentmyer, 90 Md. 705, 45 Atl. 1006.

§ 1552. Refusing to Take Proper Steps for the Benefit of the

Estate.

The personal representative must administer the estate for the benefit of those entitled thereto and this requires him to take proper steps to save the estate from loss. Where no personal property is comprised among the assets of the estate, and there are debts owing by the estate, one of which is secured by a mortgage upon real property of the estate and which is about to be foreclosed, if the personal representative removes from the county and refuses to ask for an order of sale of the real estate, the value of which greatly exceeds the amount of the mortgage, the court is justified in removing him from office. If the representative refuses to institute proceedings to have a conveyance set aside which appears to have been fraudulently executed, he may be removed and another appointed in his place.66 It may be stated as a general rule that if the personal representative neglects to perform the duties of his trust, it is cause for the revocation of his letters.67

§ 1553. That Estate May Be Benefited no Excuse for Failure to Perform Duties.

Dilatoriness on the part of the personal representative with regard to the administration and settlement of the estate is a ground for removal.68 An executor or administrator must perform the duties of his trust as imposed by

65 Frothingham v. Petty, 197 Ill. 418, 64 N. E. 270.

66 In re McCluskey, 116 Me. 212, 100 Atl. 977; Putney v. Fletcher, 148 Mass. 247, 19 N. E. 370; Dunbar v. Kelly, 189 Mass. 390, 75 N. E. 740.

67 Estate of Banquier, 88 Cal. 302, 26 Pac. 178, 532; Estate of Simon, 155 Pa. St. 215, 26 Atl. 424.

68 Willson v. District Court, 166 Iowa 352, 147 N. W. 766.

law, and can not excuse his neglect to do those things which the law requires on the ground that the delay or omission was for the benefit of the estate. Even if the estate is actually benefited, such result is considered as accidental since the result might have been a loss, and if the excuse is good in the one instance it would be good in the other. Such a theory is contrary to the statute and does not receive the sanction of the courts.69

69 In re Holladay's Estate, 18 Ore. 168, 22 Pac. 750,

CHAPTER LX.

COSTS AND ATTORNEY FEES.

§ 1554. Costs and counsel fees generally: Distinguishing fea tures.

§ 1555. Statutory regulations as to costs: Exceptions to the general rule.

§ 1556. Costs where personal representative is a party.

§ 1557. Right of personal representative to employ his own

counsel.

§ 1558. Representative is personally liable to attorney for his services.

§ 1559. Personal representative entitled to credit or allowance for attorney fees.

§ 1560. As to actual payment of attorney fees prior to allow

ance.

§ 1561. Allowance for attorney fees is limited to reasonable value for necessary services, unless fixed by statute.

§ 1562. Effect of an agreement as to attorney fees.

§ 1563.

As to allowance for fees where representative acts also

as attorney.

§ 1564. Costs and counsel fees in proceedings to construe wills. § 1565. The same subject: Allowance made only when the proceeding is brought in good faith.

§ 1566. Personal representative not allowed attorney fees for litigation which is result of his own wrong.

§ 1567. Attorney fees allowed only for services in interest of the

estate.

§ 1554. Costs and Counsel Fees Generally: Distinguishing Features.

Costs, including a reasonable counsel fee, are allowed to an executor or administrator for obtaining letters testamentary or of administration where there is no contest, and the representative is entitled to credit from the