Graber v. Schram
Graber v. Schram
Opinion of the Court
This appeal is prosecuted from an -order denying the petition and motion of appellant, a legatee, to revoke the letters testamentary of the respondents for failure to file an inventory within the time prescribed by law. The sections of the code bearing upon this question are as follows:
“Sec. 1443. Every executor or administrator must make and return to the court, within three months after his appointment, a true inventory and appraisement of all the estate of the decedent, etc.”
“Sec. 1450. If an executor or administrator neglects or refuses to return the inventory within the time prescribed, or •within such further time, not exceeding two months, which the court or judge shall for reasonable cause allow, the court may, upon notice, revoke the letters testamentar}’ or of administration, etc.”
It is now claimed by appellant that, if the executor or administrator does not file his inventory and appraisement within the time allowed by the statute, his letters must be revoked when that fact is brought to the attention of the court, and that the court has no judicial discretion in the matter. . We do not think such to be the construction placed upon the statute by the profession; neither do we think it justified by the language used. While section 1450 is a most salutary one, yet all the purposes which could possibly have actuated the legislative mind in enacting it may be fully served by holding its provisions directory, rather than mandatory. To revoke or forfeit letters testamentary or of administration, ipso facto, by a statute, is most rigorous treatment, and we would not be inclined to so construe the law,
We see no such abuse of discretion in this case, and the order appealed from is affirmed.
Yah Fleet, J„, and Harrison, J., concurred.
Reference
- Full Case Name
- In the Matter of the Estate of LOUIS GRABER, LOUIS GRABER, Jr. v. MATTHIAS H. SCHRAM, Executors, etc.
- Cited By
- 11 cases
- Status
- Published
- Syllabus
- Estates of Deceased Persons—Revocation of Letters to Executors— Failure to File Inventory—Discretion—Construction of Code.— Under section 1450 of the Code of Civil Procedure, the court has judicial discretion to allow or refuse a revocation of letters testamentary issued to the executors of a will for failure to file the inventory and appraisement of the estate within the time limited therefor; and the action of the superior court will not be disturbed upon 'appeal unless there has been a gross abuse of discretion.