We are constrained to affirm tbe judgment of tbe court below in declining to remove tbe administrators on рractical considerations wbicb we think must bave controlled tbe clerk, and tbe judge on appеal, in their action.
Tbe evidence and record show that tbe estate is practically administerеd, and we seriously doubt whether remaining creditors or tbe petitioning distributees will be put in a more favorablе position to assert any rights they may bave or redress any wrongs they may bave received at tbe bands of the present incumbents by installing a new administration. Such action is usually instigated by tbe necessity of presently рreserving tbe estate, rather than for punishment or correction of personal representatives.
We wish, however, to make it clear that this decision is not an approval of tbe management of tbe estate as disclosed in tbe record, or of tbe acts and omissions of tbe respondents fоr wbicb removal is sought; and we do not intend to establish any precedent that tbe failure to comply with statutory or common law requirements in tbe conduct of administration and needless delay in winding up tbe estatе, are not valid grounds for removal. Had tbe respondents been removed from office, we would bavе felt bound upon this record to sustain it.
Tbe respondents failed to file inventories required by law — one of tbe most vital requirements in aid of supervision; they did not file reports and accounts promptly; and they delayed closing tbe estate, without sufficient explanation or formal extension of time. They were dilatоry in collecting assets in tbe bands of the commissioners, borrowed money and delayed repayment until tbe interest grew into large sums. On tbe other band, there is no apparent diversion of funds, and charges of waste must depend on more substantial evidence than appears in the record. What tbe outcomе of tbe estate might bave been under expeditious administration is more or less a matter of speсulation.
It is strongly argued by petitioners that neither tbe clerk of tbe Superior Court nor tbe judge bearing tbe appeal bad any discretion in tbe matter of removal on tbe evidence developed in this case, in view of tbe peremptory phrasing of tbe statute, C. S., 31, under wbicb this proceeding is brought. With this view we cаnnot agree. Tbe exigencies of administration require tbe exercise of sound judgment, and this necessarily implies discretion in its supervision. This statute provides for tbe revocation of letters of administration and the removal of administrators from office upon complaint that the person to whom tbe *699 letters were issued “has been guilty of default or misconduct in the due execution of his office.” If, upon a heаring, “the objections are found valid, the letters issued to such person must be revoked and superseded аnd his authority shall thereupon cease.”
“Must” denotes imperative action, indeed, but the action bеcomes imperative only when the conditions upon which it shall be taken are clear and compelling. Before taking action, the clerk must determine the validity of the charges brought against the administrators, and this, we apprehend, includes a finding of their sufficiency to justify removal, in determining which he must exercise his good judgment under the guidance of law and precedent.
In re Battle,
The clerk is not compelled to remоve an administrator for failing promptly to file an inventory when in his judgment the estate has received no damage; C. S., 48, 49; nor for failure to file account; C. S., 106; nor for delay in winding up an administration. Instead of removal, thе performance of all these duties may be enforced by appropriate proceeding.
Atkinson v. Ricks,
The appeal from the judge of the Superior Court is heard upon matters of law and legal inferenсe.
Wright v. Ball,
In sustaining the conclusion reached by the court below denying the petition to revoke the letters of administration or remove the administrators, this Court does not intend to make the findings of fact and conclusions of the clerk of the Suрerior Court or the judge reviewing them on appeal effective for any other purpose. Thеy are confined to a consideration of that question alone and do not constitute res judicata in any othеr proceeding between the parties which the petitioners may be entitled to pursue, and are not to be taken to the prejudice of either party therein.
For the reasons stated the judgment is
Affirmed.