Re Watkins Estate

I concur in the result of the foregoing opinion, but I regret to say that I am not in accord with everything that is contained in it.

I take it as granted that the selection of a suitable person as administrator d.b.n., c.t.a. under the provisions of P.L. 2784 lies in the discretion of the probate court or, as here, of the county court sitting as a higher court of probate, and that such discretion will not be revised in the absence of a clear showing that it has been abused or withheld. And the test of an abuse is a showing that the discretion has been exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Temple v. Atwood, 99 Vt. 434, 435, 134 A 591. Moreover, the term "suitable person" is to be construed as having reference to interest and business qualifications for the office of administrator and such relations to the estate and those interested therein as will be consistent with its proper and safe administration. State ex rel. Fourth National Bank v.Johnson, 105 Wis 164, 169, 83 N.W. 320, 326.

As the opinion points out, an executor de son tort is not ineligible for appointment as administrator. If appointed, all acts previously done in relation to the estate, which would have been legal and proper, if he had been the legal administrator, are validated and he is required to account to the Probate Court as if he had always been in office. Alford v. Marsh, 12 Allen 603, 604; Hatch v. Proctor, 102 Mass. 351, 354.

The existence of an adverse interest does not per se disqualify a person or corporation from appointment as administrator. Under certain circumstances a creditor of the estate may be appointed. P.L. 2775 — II. And "there is nothing vicious in allowing an estate to be administered by one indebted to it." Ford v. Peck, 116 Kan 481, 227 P. 527; McFry v. Casey, 211 Ala. 649, 101 S 449,450. The opinion recognizes this principle but holds that since there are large claims asserted in good faith against the appellee for negligence and for sums of money taken from the estate as executor's fees, while acting as executor de son tort, the adverse interest is of such a nature that the appellee, if appointed, could not fairly and impartially administer the estate, and that if the appellant's requested findings had been made it would have been an abuse of discretion to select the appellee as a suitable person to act as administrator. Now, I agree that these findings were based upon the uncontradicted evidence and were material, and that it was error to refuse them. There is no doubt that they have great weight and should be considered by the trial court in the process of exercising its discretion. But I do not agree to the proposition that they necessarily result in a disqualification. I do not believe that it can be said, as a matter of law, that they create an adverse interest so great as to overpower the appellee's adherence to its legal and moral duty, if appointed, and I think that in this respect the result of the opinion is to substitute the discretion of this Court for the discretion of the court making the appointment. We have no discretion in the matter. Bradley v.Blandin, 94 Vt. 243, 257, 110 A 309. It may be that if this Court had been charged with the duty of making the appointment in the first instance, a different result would have been reached, but difference in judicial opinion is not synonymous with abuse of judicial discretion. Dyer v. Lalor, 94 Vt. 103, 116, 109 A 30. These claims are capable of adjustment in the orderly course of procedure in the probate court. See In re Hall's Estate, 70 Vt. 458, 462, 41 A 508. If the decision rested upon this point alone, I would reverse and remand the cause so that the trial court could exercise its discretion upon the record as enlarged by the inclusion of the requested findings.

I am, however, in accord with my associates in what is said concerning the claim against the appellee based upon its liability as executor de son tort. Whether this liability was assumed at the time of the consolidation of the City Trust Company and the Howard National Bank, or at the time of the expiration of the City Trust Company's charter is not necessary to decide. Since, as has been said, the appointment of an executor de son tort as administrator relates back it follows that the taking possession of the estate would be validated, and the claim for conversion of the assets would no longer exist. The liability of an executor de son tort is enforceable in an appropriate proceeding either at law, or in equity, brought against the intermeddler by the legally appointed administrator, and not before the probate court. Shaw v. Hallihan, 46 Vt. 389, 394, 14 Am Rep 628. Therefore I agree that it is an abuse of discretion to appoint a person administrator when a legal claim asserted in good faith against him, which is a potential asset of the estate, would be thereby extinguished and lost.

On argument counsel for the appellee called attention to certain evidence in the case, to the effect that over a period of years, while the appellee was executor de son tort, the appellants raised no objection to the handling of the estate by it, corresponded with it and treated it as the legal executor, consented to a partial decree of distribution and received from it the sums of money so decreed, without questioning its authority. It was suggested that this evidence should be embodied in findings, to be used as a guide to the court's discretion, if the appellant's requests should be granted.

It has been held that when an executor de son tort has acted with reference to an estate with the consent of the interested parties, it is inequitable for them to insist upon the liability which legally accompanies the intermeddling. Blair v. Brooks,234 Ala. 129, 173 S 851, 853; Davenport v. Sanderson, 204 Iowa 927,216 N.W. 55, 56-8; McHugo v. Norton, 159 Minn. 90, 198 N.W. 141, 142;In re Johnson, 68 S.D. 598, 5 N.W.2d 38, 41. But if applicable to the facts of the present case, which it is not necessary to decide, this principle is a matter to be put forward in defense of an action brought against the intermeddler on behalf of the estate, or as a ground for equitable relief. It is not a question for the probate court to determine in making the appointment.