Andrews v. Carr ( 1852 )

Greene, C. J.

This Court is careful in reversing the decrees of the Court of Probate in removing or appointing administrators, because from its position that Court can better judge who is the suitable person for the office. But in this case we can act with a full knowledge of the facts. The ground for the removal is, that the administrator is negligent and is wasting the assets. Up to March, 1851, no fault can be found with him. In contesting the claim of Carr and other claimants, he was but fulfilling the objects of his appointment, one of which is to protect the estate from invalid and doubtful claims. Judgment for these claims was rendered in March, 1851, and the motion to set aside the judgment was filed in August. He was not in fault in filing the motion, nor can we say that he was guilty of unreasonable delay, sincé we do not know that it was more than sufficient to ascertain the grounds for a new trial and the evidence. The claims were doubtful, and it was his duty as administrator and agent of the heirs to interpose every legal objection that industry and care could furnish. He is not liable to be removed for this, and certainly the creditor whose interest is involved in a contested suit ought hot to be appointed. The threats which he is alleged to have thrown out can hardly be acted upon. If his conduct has been right, any mere intemperate expressions in which he has indulged are no ground for a removal.

Potter and Bradley for appellant. Ames, Cozzens, and Bowen for Carr.

Decree reversed.