In re the Estate of Moore

Paterson, J. The appellant, Thomas W. Moore, was appointed administrator of the estate of William H. Moore, deceased, March 4, 1872. On February 7, 1882, a petition was filed by the widow of deceased, asking the court to remove the administrator from his office, on the grounds that he was incompetent to act as administrator of the estate, and that he had neglected to have his accounts settled by the court, and had failed to turn over certain property which had been set apart as exempt from administration. On September 19,1883, the court denied the petition; the widow thereupon appealed, and on January 27, 1886, this court dismissed the appeal, on the ground that an order refusing to remove an administrator was not appealable. (Estate of Moore, 68 Cal. 394.) On March 16, 1883, the widow asked the court below to appoint her administratrix of the estate, on the ground that Thomas W. had been committed to the insane asylum on April 28, 1881, and that since that time no order had been made appointing any person administrator of the estate. The court denied the request, and the widow again appealed. This court on appeal held that the fact that the administrator had been sent to an insane asylum did not create an absolute vacancy in the [585]administratorship of the estate, and the application having been made after his incapacity had been removed, and he had again entered upon the discharge of his duties as administrator, the court properly refused to appoint another in his place. (Estate of Moore, 68 Cal. 281.)

On July 14, 1887, the petition before us herein was filed in the court below, asking for the removal of the administrator, on the following grounds: 1. That he had failed to pay all the family allowance, and refused to deliver to the widow the possession of property set aside for her; 2. That he had failed to file his final account within a reasonable time; 3. That he had wrongfully prolonged the administration of the estate for the purpose of withdrawing from the estate the sum of six thousand dollars to pay the widow; 4. That he had used six thousand dollars of the fund of the estate to pay off a personal obligation; 5. That he had become mentally and physically incompetent to act as administrator; 6. That although he knew one of his bondsmen had removed from the state, no additional bond had been given; 7. That he improperly paid out certain sums of money. The appellant filed an answer denying all the charges.

The evidence introduced related to only two of the charges, namely, the first and the fifth.