114 F.2d 505 | D.C. Cir. | 1940
On May 5, 1938, Louise A. Hawley, appellant herein, petitioned the Probate Court of the District of Columbia for an order upon the appellee to show cause why she should not be removed as executrix of the estate of Charles A. Hawley, and why she should not be punished for contempt of court.
The action of the lower court must be sustained. Considering, first, appellant’s contention that the court erred in refusing to remove appellee as executrix, her petition alleged no ground sufficiént to support an order for removal. The rule is well settled that an executor or administrator can be removed only for legal causes specified in the statute, which confers power upon the Probate Court.
In the District of Columbia the Probate Court is given power “to grant and, for any of the causes hereinafter mentioned, to revoke letters testamentary.”
Concerning the filing of a special bond by an executor who is residuary legatee of the estate, the Code provides merely that the executor shall “give bond with security .approved by the court, and in a penalty prescribed by the court * * '
The second ground of appellant’s petition is equally without avail to her. Assuming — solely for purposes of argument — that the Probate Court has power to punish for contempt
Affirmed.
See Miller v. Hider, 9 Colo.App. 50, 47 P. 406; In re Shenk’s Estate, 125 Misc. 386, 211 N.Y.S. 514; In re Zartner’s Will, 183 Wis. 506, 198 N.W. 363; Clark v. Patterson, 214 Ill. 533, 73 N.E. 806, 105 Am.St.Rep. 127; Note, Ann.Cas. 1915D, 284; Note, 138 Am.St.Rep. 525. See also, In re Estate of Patten, 7 Mackey, D.C., 392, 405; In re Atkins’ Estate, 121 Cal.App. 251, 8 P.2d 1052.
D.C.Code 1929, tit. 18, § 124.
D.C.Code 1929, tit. 18, § 132. See Cook v. Speare, 13 App.D.C. 446.
Richardson v. Daggett, 24 App.D.C. 440.
Richardson v. Daggett, 24 App.D.C. 440; Levering v. Levering, 64 Md. 399, 410, 2 A. 1, 3: “It has been held in some of the states that the power of removal is inherent in courts of probate, and must necessarily exist in order to prevent a failure of justice. * * * In Maryland, however, an executor or administrator can only be removed for legal and specific causes, and after citation and an opportunity to be heard in opposition to the motion. The orphans’ court has no constructive powers. It has few of the attributes appertaining to courts of general jurisdiction. Its jurisdiction is limited and created by statute, and its ex-ereise of power can receive no support from presumptions. We must therefore look fo the sources of its power, which are to be found in the numerous legislative enactments designating its duties and conferring the jurisdiction necessary to the proper performance of its functions.”
Guthrie v. Welch, 24 App.D.C. 562, 567: “In the matter of the removal of an executor there is, of course, a limitation upon the authority of the court that it cannot be done without just cause, for the reason, as already stated, and as is well settled, that the executor does not derive his authority from the court, but from the will of the deceased; and the power to remove must therefore be specifically granted by the statute.” Cf. Emery v. Emery, 45 App.D.C. 576.
D.C.Code 1929, tit. 18, § 134.
(1) Misconduct or negligence of a co-executor, coadministrator, or cocollector (tit. 29, § 77); (2) failure to file additional- bond required by the court (tit. 29, §§ 78, 132); (3) failure of a nonresident fiduciary to file power of attorney (tit. 29, § 88); (4) wasting assets of the estate (tit. 29, § 132); (5) selling, pledging or disposing of assets without order of court (tit. 29, § 232); (6) concealment of assets (tit. 29, § 254); (7) failure to re
The pertinent allegations of appellant’s petition are as follows: “That on or about October 7, 1930, Evelyn S. Haw-ley filed a petition duly verified under oath by herself, praying that the said general administration bond of $30,000 be revoked and the order directing same be vacated and that she be permitted to file a special bond to pay the debts and damages of the estate. In this petition, which is referred to as a part hereof, Evelyn S. Hawley stated and represented to the Court that all of the debts of the estate of said Charles A. Hawley, deceased, had been paid, except three which were disputed, namely:
“Overruled: Gordon, J.
“Dr. P. Scott Avery $250.00
Harry Lamson 3000.00
Walter C. Balderston 1750.00
Total $5000.00
She well knowing at the time that the said $2700.00 note owned by this petitioner hereinafter described had not been paid and that she had paid interest on it.
* # *
“_ The record does not indicate that Evelyn S. Hawley ever reported to the Court the insolvency of her surety and this petitioner has been unable to learn that she so reported to the Court.
* * *
“The petitioner is informed, believes and so charges that at the time that Evelyn S. Hawley on or about October 7, 1930, filed the said petition stating the creditors of the estate, there was another large creditor which the said Evelyn S. Hawley did not mention and which the said Evelyn S. Hawley has since paid, but the said Evelyn S. Hawley has not paid this petitioner the said $2700 principal nor all of the interest due on the said note held by this petitioner.”
D.C.Code 1929, tit. 29, § 133.
Rule 4, Probate Rules (1937); Rule 19, Probate Rules (1938).
D.C.Code 1929, tit. 29, §§ 78, 132.
See Cropper v. McLane, 6 App.D.C. 119.
See generally, 12 Am.Jur., Contempt, § 43.
See Wingert v. Kiefer, 4 Cir., 29 F.2d 59; United States ex rel. West Virginia-Pittsburgh Coal Co. v. Bittner, 4 Cir., 11 F.2d 93; In re Paleais, 2 Cir., 296 F. 403.
D.C.Code 1929, tit. 18, § 20.
Barksdale v. Morgan, 34 App.D.C. 549.
Cf. State Bar of California v. Superior Court, 4 Cal.2d 86, 47 P.2d 697.