Nickels' Adm'r v. Horsley
Nickels' Adm'r v. Horsley
Opinion of the Court
delivered the opinion of the court.
This is a motion under section 2687 of the Code for the revocation and annulment of the powers of J. C. Parrish as administrator of J. C. Nickels, deceased, made by the surviving husband and children of Margaret Horsley, who was the daughter of the decedent. The trial court sustained the motion, and the plaintiff in error is here complaining of the order revoking and annulling his appointment-.
“There must, of necessity, be vested in that court a very large discretion; and while it is a legal discretion, to be exercised in a proper case, an appellate court ought not to interfere, except in a case where manifest injustice has been done, or where it is plain that a proper case has not been made for the exercise of the powers which the legislature has especially conferred upon that court, from which the fiduciary derives his authority.” Snavely v. Harkrader, 29 Gratt. (70 Va.) 128.
Nannie E. Parrish, his wife, and others instituted a par
There are other matters shown by the record which make it difficult to separate the individual from the co-partnership property, and it is clear that there are conflicting interests between the administrator, claiming in his own right as surviving partner of the decedent, and the heirs at law and distributees claiming under the decedent. In this state of affairs there should be an administrator who should thoroughly investigate the partnership affairs, ascertain just the nature of the partnership and the true state of the accounts, so as to make the proper distribution of the assets as between the surviving partner and the distributees of the estate of the decedent.
In 2 Schouler on Wills, etc. (5th ed.), sec. 1104, p. 1916, this is said:
“One may be considered unsuitable for the appointment who holds already some other trust whose interests decidedly conflict with those of the estate in question. Or who is largely indebted to the estate, especially if the amount due has not been ascertained. Or who was partner of the deceased at the time of his death. Or who is hostile to another of the next of kin. Or who is otherwise- so adversely interested to heirs, creditors, or other kindred, as to prejudice*58 the due settlement of the estate, if it be placed under his charge. For the administrator should be interested in settling the estate, not unfaithfully or partially, but faithfully, for the welfare of all concerned.”
In Cornell v. Gallaher, 16 Cal. 367 (construing a. statute); Heward v. Slagle, 52 Ill. 336, and Estate of Brown, 11 Phila. 127, it is determined that a surviving partner of an intestate ought not to be appointed administrator of his deceased partner’s estate.
The order appealed from is'plainly right.
Affirmed.
Reference
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- Nickels' Adm'r v. Horsley and Others
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- Syllabus
- 1. Fiducaries—Removal—Power of Court.—Under section 2687 of the Code of 1904, the court under the order of which a fiduciary derives his authority,- is vested with the right and duty to revoke and annul his power whenever from any cause it is proper. 2. Fiducaries—Removal—Discretion of Court—Appeal from Order Removing.—A court is veste'd by section 2687 of the Code of 1904 with a very large discretion in regard to the removal of a fiduciary .appointed by it, and while it is a legal discretion, to be exercised in a proper case, an appellate court ought not to interfere, except in a case where manifest injustice has been done, or whtere it is plain that a proper case has not been made for the exercise of the powers which the legislature has specially conferred upon that court, from which the fiduciary derives his authority. 3. Executors and Administrators—Partner as Administrator— Removal—Case at Bar.—Where a surviving partner was ap- • pointed as administrator of his deceased partner, and failed to return any inventory or appraisement within four months of _ the date of his qualification as required by statute, and it was clear that there were conflicting interests between the administrator, claiming in his own right as surviving partner, and the heirs at law and distributees claiming under the decedent, an order removing the administrator is plainly right. 4. Executors and Administrators—Surviving Partner As Administrator—Case at Bar.—It may well be doubted whether a surviving partner should ever be appointed administrator of his deceased co-partner, but certainly in the instant case, where sharp conflicts as to their respective rights have arisen, he should be removed, for the surviving partner, while having full control over the partnership assets, is the debtor of his deceased co-partner for any balance due to his estate, and unless there be exceptional circumstances the administrator only can sue for such balance.