the estate.22 A statute prescribing grounds for the removal of a personal representative from office will not be construed to ipso facto revoke or forfeit letters testamentary or of administration unless the intention of the law-making power to that effect is plainly manifest.23 Proceedings to remove an executor or administrator from office are largely statutory, and a court of probate which is vested with jurisdiction by statute may exercise only such power as is thus specially conferred, and it must conform strictly to the methods of procedure therein prescribed.24 But unless the statute specially so prescribes, 22 Metropolitan Trust Co. V. Stallo, 166 App. Div. (N. Y.) 639, 152 N. Y. Supp. 183. 23 In re Graber's Estate (Graber v. Schram), 111 Cal. 432, 434, 44 Pac. 165. 24 In re Patten, 7 Mackey (D. C.) 392; Kidd v. Bates, 124 Ala. 670, 27 So. 491; In re Baldridge, 2 Ariz. 299, 15 Pac. 141; Matter of Bell, 135 Cal. 194, 67 Pac. 123; Miller v. Hider, 9 Colo. App. 50, 47 Pac. 406; Collins v. Carr, 112 Ga. 868, 38 S. E. 346; White v. Horn, 224 Ill. 238, 115 Am. St. Rep. 155, 79 N. E. 629, affirming 127 Ill. App. 222; Haddick v. Dist. Court, 160 Iowa 487, Ann. Cas. 1915D, 278, 141 N. W. 925; In re Bagnola's Estate (Conte v. Di Corpa) (Iowa), 154 N. W. 461; Gill v. Riley, 28 Ky. L. Rep. 639, 90 S. W. 2; Carey v. Reed, 82 Md. 383, 33 Atl. 633; Drake v. Green, 10 Allen (92 Mass.) 124; Holbrook v. Campau, 22 Mich. 288; Culver v. Harden bergh, 37 Minn. 225, 33 N. W. 792; Muirhead v. Muirhead, 6 Sm. & M. (14 Miss.) 451; Hazlett v. Blakely's Estate, 70 Neb. 613, 97 N. W. 808; Shreve v. Wampole, 38 N. J. Eq. 490; Dow v. Simpson, 17 N. M. 357, 132 Pac. 568; In re McDonald, 211 N. Y. 272, 105 N. E. 407; Munger v. Jeffries, 10 Ohio Dec. 12; In re S. Marks & Co.'s Estate, 66 Ore. 340, 133 Pac. 777; In re Kuntz, 230 Pa. 557, 79 Atl. 755; Tillman v. Walkup, 7 S. C. 60; Howell v. Dinneen, 16 S. D. 618, 91 N. W. 698; Varnell v. Loague, 9 Lea (Tenn.) 158; Kuck v. Dixon (Tex. Civ. App.), 127 S. W. 910; Holmes v. Holmes' Estate, 26 Vt. 536; In re Hooper, 76 Wash. 72, 135 Pac. 813; Tramel v. Stafford, 75 W. Va. 98, 83 S. E. 299. In Louisiana the removal of an executor or administrator for cause must be urged in a direct proceeding in the form prescribed by statute.-Succession of Bertrand, 127 La. 857, 54 So. 127. a statute conferring a power of removal for named causes does not deprive the court of its common law power to revoke letters testamentary or of administration for causes other than those therein specified.25 However, where proceedings are brought under the statute, they must conform strictly to the requirements prescribed by the statute.26 The doctrine of res judicata does not apply to a proceeding for the removal of an executor or administrator from office, and, although denied, the application may be renewed by leave of court.27 §1539. Costs and Counsel Fees in Resisting Application for Removal. Costs and counsel fees in defending himself against an application to remove him from office are generally allowed an executor or administrator who successfully resists such application, and the same are chargeable against the general estate and not against the distributive share of the party instituting the proceeding. If he has been guilty of wrong doing or neglect, and is removed. from office for such reason, he is not entitled to costs or counsel fees incurred in opposing the motion to remove him.28 25 Morgan v. Dodge, 44 N. H. 255, 82 Am. Dec. 213; Taylor v. Biddle, 71 N. C. 1; In re Brinson, 73 N. C. 278. 26 In re Bagnola's Estate (Conte v. Di Corpa) (Iowa), 154 N. W. 461; McFadyen v. Council, 81 N. C. 195; In re Battle's Estate, 158 N. C. 388, 74 S. E. 23. 27 In re McCluskey, 116 Me. 212, 100 Atl. 977. 28 Armstrong v. Boyd, 140 Ga. 710, 79 S. E. 780; Matter of O'Brien, 145 N. Y. 379, 40 N. E. 18. As to costs generally in will contests, see §§ 1334-1338. An administrator is not entitled to an allowance for counsel fees in resisting proper charges against him which are sustained.-Anderson v. Anderson, 37 Ala. 683; Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12. It seems to me clear, upon principle and authority, that a reasonable counsel fee, necessarily § 1540. Effect of Removal from Office. The general rule is that even though the appointment of an executor or administrator is voidable and his letters are thereafter revoked, all his acts in the due and legal course of administration, prior to the revocation of his letters, are valid and binding upon the estate.29 § 1541. The Same Subject: Where the Executor Is Also a Trustee. Where one person is appointed by the testator in his will not only as executor but also as trustee, the revoca incurred in the removal of an administrator, is recoverable as part of the damages resulting from his dereliction and sustained by occasion of the breach of the condition that he would well and truly administer the estate, or the breach of any of the other conditions, and for which purpose the ordinary may have the whole penalty of the bond, if necessary.—Ordinary of State v. Connolly, 75 N. J. 521, 138 Am. St. Rep. 577, 581, 72 Atl. 363. In Moses v. Moses, 50 Ga. 9, 33, it is said that where an interested party brings a charge of devastavit against the personal representative and fails to sustain the charge, he should not be compelled personally to pay the counsel fees of the representative, as it would be bad policy to put such an obstacle in the way of beneficiaries of an estate who are seeking to establish their rights. The failure of an administrator to pay his attorney's fees is not one of the enumerated grounds for removal from office, and therefore the court can not enforce the attorney's lien by revoking the administrator's letters.-In re Nocton's Estate, 162 N. Y. Supp. 215. 29 Amberson v. Candler, 17 N. M. 455, 130 Pac. 255, 258; In re Owen's Estate (Johnson v. Armstrong), 32 Utah 469, 91 Pac. 283. As to validity of prior acts, see §§ 1340, 1341. As to the effect of the revocation of letters testamentary or of administration, and as to the duty of the one removed from office to account for his administration, see § 1339. As to those entitled to letters of administration de bonis non upon the death, resignation or removal of an executor or administrator, see §§ 1248, 1249. As to the powers and duties of an administrator de bonis non, see §§ 1251, 1252. tion of his appointment as executor will not necessarily revoke his appointment as trustee; but where by the will of the testator powers and duties are conferred on the executor which do not pertain to the powers and duties of an executor but pertain to those of a trustee, an executor by virtue of his appointment as executor becomes a trustee by operation of law, and the revocation of his appointment as executor operates as a revocation of his power to act as trustee, and the powers and duties conferred upon him as an incident to his appointment as executor terminate with the revocation of his letters testamentary. 30 § 1542. Showing Necessary in Order to Remove Representative: Discretion of Court. It is not every improper act of omission or commission that warrants the removal of the personal representative, and an order removing him should be granted only when clear cause therefor has been shown.31 To authorize such an order it should be shown that the representative has been unfaithful in the discharge of his trust and that those interested have been damaged or are about to be 30 Colt v. Colt, 111 U. S. 566, 28 L. Ed. 520, 4 Sup. Ct. 553; M'Arthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652; Potter v. Couch, 141 U. S. 296, 35 L. Ed. 721, 11 Sup. Ct. 1005; Estate of Delaney, 49 Cal. 76; Tuckerman v. Currier, 54 Colo. 25, Ann. Cas. 1914C, 599, 129 Pac. 210, 215; Nangle v. Mullanny, 113 Ill. App. 457; Mather v. Mather, 103 Ill. 607; Mullanny v. Nangle, 212 Ill. 247, III Com. on Wills-34 72 N. E. 385; Groton v. Ruggles, 17 Me. 137; Carson v. Carson, 6 Allen (88 Mass.) 397; Mott v. Ackerman, 92 N. Y. 539; McAlpine v. Potter, 126 N. Y. 285, 27 N. E. 475; In re Sturgis, 164 N. Y. 485, 58 N. E. 646; Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18. 31 Pfefferle v. Herr, 75 N. J. Eq. 219, 138 Am. St. Rep. 518, 71 Atl. 689; Tompkins v. Poff, 120 Va. 162, 90 S. E. 630. damaged by reason of his acts or neglect.82 A statute which provides that if property in the hands of an executor or administrator is unsafe or in danger of being wasted, he may be required to give an additional bond, is a declaration of legislative policy indicating that it is not every unwarranted act of omission or commission that requires the letters of the personal representative to be revoked, but that he may be compelled to give security to those who may suffer because of his dereliction, and that removal is resorted to only in flagrant cases.33 The matter of revoking or refusing to revoke letters testamentary or of administration is largely within the discretion of the court which granted such letters, but, like all discretionary powers, it has its limitations, and an appellate court will reverse an order of the probate court where there has been an abuse of discretion.34 Where the statute provides for the removal of the personal representative for failure to file an inventory within the prescribed time, there is discretion reposed in the court either to remove or to refuse to remove him; and if the failure to file the inventory as prescribed by statute was the result only of mere inadvertence and for 32 In re Hooper's Estate, 76 Wash. 72, 135 Pac. 813. The fact that executors refuse to act in their capacity as executors in the presence of a person in no wise related to the office, and whose conduct toward them is unduly offensive, is no ground for removal.-In re Waterman's Estate, 112 App. Div. (N. Y.) 313, 98 N. Y. Supp. 583. 33 Pfefferle v. Herr, 75 N. J. Eq. 219, 138 Am. St. Rep. 518, 71 Atl. 689. |