Graves v. Tilton

As administrator of Smith in Connecticut, Graves may be presumed to have such an interest as entitles him to appeal. Shirley v. Healds, 34 N.H. 407. The foreign rights which he represents might be affected by such an appointment in this state as would entrust the defence of the pending suit to the claimants by whom the suit is prosecuted; and it seems to be immaterial whether Eaton and Calhoun are appellants of record or not. The reasons of appeal contain a statement of facts equivalent to an averment that, by reason of the partiality of the appellee as an agent of Richardson and Redington, plaintiffs in the pending suit and his hostility to the interests of the estate, he is not a suitable person to be administrator. For the purpose of pleading, this is sufficient.

A due regard for inter-state comity, and the convenience of having a single administrator in both states, present the inquiry whether Graves should be appointed in this state. If his object is to dissolve the attachment by settling the estate in the insolvent course, and thereby favor the subsequent purchasers at the expense of attaching creditors, and if such a course ought not to be taken, or if in any way he intends to give any one an unfair advantage, he is an unsuitable person, and should not be appointed. If the appellee, in defending the suit or otherwise administering the estate, would act as an agent of the attaching claimants, or with any degree of illegal favoritism, some other person should be appointed who would understand the disinterested and equitable character of his fiduciary duty, and perform it without fear or favor. His power should not be conferred upon an adherent of any contending party who would be likely to use it wrongfully. No litigant of record, and no purchaser or claimant who is a litigant in interest, can legally secure the partisan service of an ally in this position of trust, the holder of which is bound to exercise impartial care for all the rights he represents. The administrator should know what the law requires of him, and should be incapable of being swerved from the line of his official obligation. It is no cause for appointing an unsuitable person that any one aggrieved by his abuse of trust would have a remedy by petition for his removal and suit on his bond. An effort is to be made to avoid such litigation by a proper appointment.

If one question is whether the attachment should be dissolved by a probate decree that the estate be administered as insolvent the case may be such that all parties interested in the question should be fully heard upon it in the court of last resort. If they could not be heard on the merits in an appeal taken from a probate decree on the subject, or if their right to be heard on such appeal were doubtful, it might be the duty of the administrator to give them an opportunity to be heard on a bill in equity for instructions in the nature of a bill of interpleader, in which all parties in interest, being made parties of record, would be bound by the judgment. They may desire a determination of this question in this appeal without the expense of another suit. The facts will be found at the trial term.

Motion denied.

STANLEY, J., did not sit: the others concurred.