getfulness and not of intentional neglect, the refusal to revoke the letters of the representative is not an abuse of discretion.35

Where proceedings are instituted to remove the personal representative for misappropriation of assets of the estate, the court need not necessarily determine the truth of the charge. If evidence is produced tending to show that the charge may be true and if it appears to the court that some representative should be appointed to investigate the charges, the court is justified in revoking the letters of the first appointee.3 36

§1543. The Same Subject: Generally the Rule Applies Alike to Executors and Administrators.

An executor is the confidential agent chosen by the testator to execute his wishes as expressed in his will. The nominee of the testator has confided in him a sacred trust which, if fulfilled without partiality or preference, will rarely if ever cause him to be called upon to defend himself against a charge of misconduct or personal unfitness. The appointment of an executor by a testator is the expression of a desire that the estate is to be adminis

35 Toledo, St. L. & K. C. R. Co. v. Reeves, 8 Ind. App. 667, 35 N. E. 199; Bowers v. Cook, 124 Ind. 567, 93 Atl. 162; In re Manser's Estate, 60 Ore. 240, 118 Pac. 1024; In re Stambaugh's Estate, 246 Pa. 555, 92 Atl. 715; Clancy v. McElroy, 30 Wash. 567, 70 Pac. 1095.

Where an administrator of a partnership estate continued the business for more than six years without responsibility to any one, failed to keep thorough and accu

rate accounts, lost or destroyed account books, and did not file a full inventory of the partnership property as it existed at the death of the deceased partner, he should be removed. In re Marks & Wollenberg's Estate, 66 Ore. 347, 133 Pac. 779.

Failure to return inventory as a ground for removal from office, see § 1414.

36 Bean v. Pettengill, 57 Ore. 22, 109 Pac. 865.

tered by the nominee, and the wishes of the decedent should not be lightly considered.87 An executor should not be removed from office except upon clear proof of his unfitness for the duties of the trust. Except as the wishes of the testator in appointing an executor are entitled to consideration and have their effect upon the court when an application is made for the removal of an executor from office, an administrator is entitled to equal consideration and should not be removed from office unless a clear case is presented. Neither an executor nor administrator will be removed unless there is good reason for such removal and unless it appears that his retention of the office will be prejudicial to the interests of the estate.38

§ 1544. Effect of Failure to Give a Bond.

The failure of an executor to give a bond when so ordered by the court, even though the giving of a bond may be waived by the provisions of the will, is a ground for revoking the appointment.89

§ 1545. Effect of Failure to Give Notice to Creditors.

Failure to give notice to creditors, when the same is required by statute, is a ground for removal from office;40 but where the net value of the estate is within the figure where the court is authorized to set aside the entire estate to the widow without further administration, letters of

37 See § 1195.

38 Haines v. Carpenter, 1 Woods (U. S.) 262, Fed. Cas. No. 5905; In re Chadbourne's Estate, 15 Cal. App. 363, 114 Pac. 1012, 1013.

Legal duties of executors and administrators are the same, see § 1192.

39 Betts v. Cobb, 121 Ala. 154, 25 So. 692.

As to effect of failure of personal representative to give bond when so ordered by the court, see § 1354.

40 In re Barnes' Estate, 36 Ore. 279, 59 Pac. 464.

!

administration issued to the widow will not be revoked for failure to give such notice.11

81546. Effect of Failure to File Account.

It is the duty of an executor or administrator to return and file an account of his administration, and failure to do so is generally designated by statute as a cause for the revocation of his letters. It is, however, not a cause which compels the court to remove the representative, but is largely a matter of discretion.42 The mere fact of failure to render an annual account does not justify the summary removal of the personal representative from office; to warrant such action the representative should first be cited to show cause why he should not render his account, and if ordered to do so by court, his failure to comply with the order is cause for removal.48 It is a matter, however, to be judged according to circumstances, and a flagrant disregard of and a refusal to comply with the statutory directions as to accounting, will justify the court in removing the representative from office.**

§ 1547. Absence from the Jurisdiction as a Cause for Removal. The statutes usually provide that only those who are residents of the jurisdiction wherein the estate is to be administered are qualified to be appointed administrators, but this does not apply generally to executors

41 In re Atwood's Estate, 127 Cal. 427, 59 Pac. 770.

See § 1418.

42 Cosby v. Weaver, 107 Ga. 761, 33 S. E. 656.

43 Succession of Bertrand, 127 La. 857, 54 So. 127.

44 In re S. Marks & Co.'s Estate, 66 Ore. 340, 133 Pac. 777.

See, also, Powell v. Jackson, 60 Ind. 597, 111 N. E. 208.

Where an administrator fails to make a return which he is required to make, he may be removed at the instance of a creditor.-Ziperer v. La Roche, 145 Ga. 829, 90 S. E. 40.

appointed by the testator in his will. Thus mere nonresidence may not be a ground for removing a personal representative from office;45 but an executor who is a non-resident and who fails to come within the jurisdiction of the court and personally conduct the business of the estate at such times and as frequently as the interests of the estate demand, may be removed from office.46 An absence of the executor from the state for more than one year has been held to be a mandatory reason for removal.47

§ 1548. Where Appointment Is Secured Through Misrepresentation or Suppression of Facts.

Where one secures his appointment as administrator by means of false pretenses or by the suppression of evidence of material facts, it is cause for his removal from office;48 and the rule is the same where letters are secured because of the false suggestion of a material fact.49 The statute in New York gives the surrogate the power to revoke letters of administration for misconduct, dishonesty and misrepresentation in procuring the appointment, the misrepresentation being that the deceased left no surviving next of kin.50

45 In re Bagnola's Estate (Conte v. Di Corpa) (Iowa), 154 N. W. 461.

As to aliens or nonresidents being entitled to administer estates, see § 1200.

46 In re Kelley's Estate, 122 Cal. 379, 55 Pac. 136; In re Dietrich's Estate, 39 Wash. 520, 81 Pac. 1061.

"The court, exercising a sound discretion, must be the judge as to what will constitute the permanent absence from the state."

In re Kelley's Estate, 122 Cal. 379, 55 Pac. 136.

47 Succession of Gerard, 116 La. 912, 41 So. 206.

48 Estate of Kempton v. Funk, 158 Ill. App. 100.

49 In re Grover's Estate, 177 App. Div. (N. Y.) 272, 164 N. Y. Supp. 209.

50 In re Grover's Estate, 177 App. Div. (N. Y.) 272, 164 N. Y. Supp. 209; N. Y. Code Civ. Pro., § 2569.

§1549. Where Personal Interests of Representative Are Adverse to the Interests of the Estate.

Although the personal interests of an executor or administrator may to an extent be adverse to the interests of the estate, yet it is not every such adverse interest which disqualifies him from acting.51 Thus an executor or administrator has been held not to be disqualified merely because he claims property which is also claimed by the estate, and where he asserts his right openly and in a proper legal manner.52 But the general rule is that if the personal interests of an executor or administrator are in conflict with the duties of his office and are so adverse to the interests of the estate and of those entitled to its benefits that such conflicting interests can not be fairly represented by the same person, he should be removed from his position of trust.53

Although one may not be disqualified to act as administrator merely because he asserts title to property adverse to the estate, yet where the estate is insolvent and by reason of his adverse claim the administrator can not

51 As to interests adverse to the estate as a disqualification, see $1211.

As to creditors and debtors of the decedent acting as executor or administrator, see §§ 1212, 1213. 52 Fry v. Fry, 155 Iowa 254, 135 N. W. 1095; Farnsworth v. Hatch, 47 Utah 62, 151 Pac. 537.

An executor is not removable because he claims an interest in property once belonging to the decedent, under conveyance made in the decedent's lifetime.-In re Drummond's Estate, 100 Misc.

Rep. (N. Y.) 78; 165 N. Y. Supp. 78.

53 In re McCluskey, 116 Me. 212, 100 Atl. 977; Putney v. Fletcher, 148 Mass. 247, 19 N. E. 370; In re Dolenty's Estate (Mannix v. Dolenty), 53 Mont. 33, 161 Pac. 524; In re Mills' Estate, 22 Ore. 210, 29 Pac. 443; In re Manser's Estate (Manser v. Baker), 60 Ore. 240, 118 Pac. 1024; In re S. Marks & Co.'s Estate, 66 Ore. 340, 133 Pac. 777; In re Wallace, 74 N. Y. Supp. 33; Kellberg's Appeal, 86 Pa. St. 129; In re Sharpless' Estate, 209 Pa. 69, 57 Atl. 1128.