Graber v. Schram

Garoutte, J. This appeal is prosecuted from an -order denying the petition and motion of appellant, a legatee, to revoke the letters testamentary of the respondents for failure to file an inventory within the time prescribed by law. The sections of the code bearing upon this question are as follows:

“Sec. 1443. Every executor or administrator must make and return to the court, within three months after his appointment, a true inventory and appraisement of all the estate of the decedent, etc.”

“Sec. 1450. If an executor or administrator neglects or refuses to return the inventory within the time prescribed, or •within such further time, not exceeding two months, which the court or judge shall for reasonable cause allow, the court may, upon notice, revoke the letters testamentar}’ or of administration, etc.”

It is now claimed by appellant that, if the executor or administrator does not file his inventory and appraisement within the time allowed by the statute, his letters must be revoked when that fact is brought to the attention of the court, and that the court has no judicial discretion in the matter. . We do not think such to be the construction placed upon the statute by the profession; neither do we think it justified by the language used. While section 1450 is a most salutary one, yet all the purposes which could possibly have actuated the legislative mind in enacting it may be fully served by holding its provisions directory, rather than mandatory. To revoke or forfeit letters testamentary or of administration, ipso facto, by a statute, is most rigorous treatment, and we would not be inclined to so construe the law, [435]unless the intention of the lawmaking power to that effect was plainly manifest. Here no such intention is apparent, but, upon the contrary, by the language itself, a discretion is vested in the lower court. The statute says the court may, upon notice, revoke the letters testamentary or of administration. The fact that such revocation can only take place after notice, is a clear indication that the executor or administrator is to be given an opportunity to come before the court and show cause why his letters should not be revoked. Whether the cause shown be good or bad is a matter largely within the discretion of the trial court, and, when that court has investigated the question and adjudicated upon it, it will only be where a gross abuse of discretion has occurred that this court will interfere.

We see no such abuse of discretion in this case, and the order appealed from is affirmed.