Voorhis v. Russell
Before: Chipman
Synopsis
Estates of Deceased Persons—Nonresidence of Executor—Removal. Nonresidence is not made a disqualification to the appointment of an executor; but the appointee must, within a. reasonable time, personally submit himself to the jurisdiction of the court, and personally conduct the settlement of the estate; and if, after having qualified and filed an inventory, the executor again permanently departs' from the state, he may be removed by the court, and an administrator with the will annexed may be appointed in his stead.
Id.—Construction of Code—Permanent Removal of Executor from State.—The phrase “ permanently removed from the state,” used in section 1486 of the Code of Civil Procedure, as a ground for revoking the letters of an executor, not only applies to a resident executor who has permanently removed from the state, but the reason for revoking the letters in such a case is equally applicable to a nonresident executor who has come to the state to receive his appointment, and then permanently withdraws from the state and remains away.
Id.—Procedure to Remove Exkcutor—Suspension.—The suspension of an executor before citing him to appear and show cause why his leuers should not oe revoked looks toward his removal; but it is not a necessary step, and the court may reach the ultimate object of removal by a direct proceeding therefor witnout a prior suspension.
jd.—Information of Judge—Public Administrator.—The source of the information upon which the judge acts in removing an executor is immaterial. He may act upon his own knowledge or from credible information; and it cannot be objected that the public administrator, who has petitioned for such removal, is a volunteer, and has no interest in the estate.
CHIPMAN, C. Petition of Luther C. Russell, public administrator of Riverside county, praying that letters testamentary issued to Frances A. Van Voorhis be revoked, and that letters of administration with the will annexed be issued to him. The court gave judgment removing the executrix and appointing petitioner as prayed for, from which the executrix appeals on the judgment-roll alone.
The court found that deceased died testate January 7, 1895, naming appellant executrix; on January 28th she filed her petition for probate of the will and for letters testamentary, which duly issued February 11th, and she thereupon duly qualified as executrix; February 21st she filed her inventory and appraisement and took possession of the property of the estate; at that time she was a resident of the city of Rochester, Monroe county, state of Hew York; immediately after issuance of letters she returned to her home in Rochester, and has continuously resided and now resides there; she has not come into this state nor submitted herself to the jurisdiction of the court since her appointment, nor has she personally conducted the affairs of the. estate; [381]she has never filed any account of her administration except an account filed November 16, 1897, and after application for her removal had been made by the public administrator.
“As a conclusion of law from the foregoing facts the court finds that the said Frances A. Van Voorhis .... has forfeited her right to further act as such executrix, and she is therefore removed as such executrix .... and that Luther C. Bussell, public administrator .... is entitled to letters,” et cetera.
The question presented is: Should the letters of a nonresident executor be revoked who, upon receiving his appointment and filing his inventory, permanently removes from the state and does not at any time return to personally conduct the business of the estate or place himself within the jurisdiction of the court? The executrix in -this proceeding was appointed February 11, 1895, and filed her inventory February 21st. She then returned to her home in Bo Chester, New York, where she ever since has remained. The court found that she had not come into this state nor submitted herself to the jurisdiction of the court since her appointment, nor personally conducted the affairs of the estate. She was cited to appear and show cause why her letters should not be revoked. She appeared by attortorneys, who filed a demurrer to the petition and also filed her first account. She did not appear personally, nor did she make any answer to the citation. We think the trial court had the power to revoke the letters, and that the findings justify its exercise.
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