Middleby's Estate
Middleby's Estate
Opinion of the Court
No error was committed in refusing a commission to take the deposition of the appellant. He was, as the court below correctly said in denying the motion for the commission, a party to the record, and, for the purpose of the estate, within the jurisdiction of the court. Nor was there error in admitting in evidence the record of the proceeding in equity between Gherst, ancillary executor, and Nystrom, for, though the appellant was no party to that proceeding, he had written, on August 10, 1912, to William J. Rourke, Esq., his attorney, as follows : “I should like you to advise Mr. Nystrom of his rights in the matter of the suit brought against him by Mr. Gherst. What I wish to avoid is any breach by him of any temporary injunction or order of the court. I should like you to prepare answer for Nystrom and submit it to me and then with your approval, file it in the case and push the case for trial without any quarter to Gherst who is deserving of no consideration.” In this letter he referred to Nystrom as his agent.
Under the single fact justly found by the court below, the appellant has forfeited all right to continue to act as ancillary executor, and the decree discharging him is affirmed at his costs.
Reference
- Full Case Name
- Middleby's Estate. McCarthy's Appeal
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- Decedents’ estates — Executors—Mismanagement—Discharge — Evidence — Depositions—Party within jurisdiction — Depositions of a respondent — Court records. 1. A resident and a nonresident were appointed ancillary executors of a decedent’s estate, and in accordance with the directions of the will were to operate the business left by the testator. The resident executor did not participate in the management thereof, and the nonresident executor appointed as his agent therefor a third person whose conduct was detrimental to the interests of the estate, and who was restrained at the instance of the resident executor, by injunction, from wasting its assets. Thereafter the resident executor petitioned for the removal of the nonresident executor, alleging that he was mismanaging the estate. Held, that the court was correct in removing such executor, where a finding that he had neglected to perform his duties, had grossly mismanaged the estate to its great injury, and had refused to appear before the court to explain his conduct, when directed so to do, was justified by the evidence. 2. In such a case, the record of injunction proceedings brought by the resident executor against the manager for the purposes of preventing the wasting of the assets is admissible in evidence, where it appears that the nonresident executor had in a letter to his attorney referred to said manager as his agent. 3. A motion by such nonresident executor for the appointment of a commission to take his depositions was properly denied, as he was a party to the record, and for the purposes of the estate, within the jurisdiction of the court.