Thayer v. Homer

Hubbard, J. It was expressly admitted, in the argument for the defendants, that Homer could not execute the power if he had been effectually discharged as executor ; that the power was given by the will to those who should undertake that office, and with'a view, therefore, to the security of their bond; and that, when that security ceases, the power does not remain. The only question, therefore, presented for the consideration of the court, is upon the validity of the decree removing Mr. Homer from his office as executor. This depends upon the construction to be given to the Rev. Sts. c. 63, § 7, the words of which are, 11 or where any executor shall become insane, or otherwise incapable of discharging his trust, or evidently unsuitable therefor, the judge of probate may remove him, and the other executor, if there is any [110] may proceed in discharging the trust, as if the executor sc removed were dead.” It is argued, from the words “ evidently unsuitable,” that no constructive unsuitableness, founded on convenience or choice merely, or any equivocal cause, is sufficient, but that it must be a clear case of absolute unfitness, equivalent to insanity or incapability. The defendants also contend, that the decree of the judge of probate was not warranted, upon the case presented to him, as the matter in controversy between Homer and the other heirs could have been settled' by the judge of probate, upon appeal to this court, without his discharge. These grounds of objection are in their nature distinct; but the last is dependent upon the first. Because, if the removal was for a cause over which the judge had jurisdiction, the correctness of his judgment cannot be impugned in this collateral manner. We think too limited a construction is given, by the learned counsel, to the word “unsuitable,” by restricting it to a cause of unfitness equivalent to insanity or incapability, ¡o The causes for removal are both physical and moral. Insanity is a cause for removal arising from bodily disease, and the incapability of discharging the trust is similar, when arising from defect of memory, want of physical ability, or other like infirmity. But unsuitableness implies no want of capacity or mental infirmity, but an unfitness arising out of the situation of the person in connexion with the estate of which he is administrator, either by reason of his being indebted to it, or having claims upon it, or in the interest he has under a will, or his situation as an heir at law. The statute does not attempt to enumerate the causes, but gives the judge of probate a broad discretion to include the various cases that may arise, where the exercise of such a power would be judicious, and which power may be well reposed in him, in the first instance, as his decree, if complained of, may be immediately reversed on appeal. X This view is taken of the statute, in the case of Winship [111] v. Bass, 12 Mass. 200, 201, where a question arose on an appeal from the judge of probate for removing an executor on the ground that he was an unsuitable person to execute the trust, by reason of his being indebted to the estate. The removal in that case was under St. 1783, c. 24, § 19, the provisions of which are reenacted, together with those of St. 1808, c. 98, § 1, on the same subject, in the Rev. Sts. c. 63, § 7. In the case at bar, the executor himself, for causes named, having claims on the estate which he believed he could not properly prosecute while he held the office of executor, prayed to be discharged from the trust; and the judge, in the exercise of his judicial functions, made the decree which is now complained of. It is contended that this decree was a nullity. But the judge was called upon to decide a case, to wit, the unsuitableness of one of the persons named as executor to execute the trust reposed in him. He had then the proper parties before him, and the subject was expressly embraced in a statute in which the jurisdiction, in the first instance, is conferred solely on him. Instead, therefore, of treating this decree as a nullity, we are bound to declare in favor of its validity, whether we are satisfied with the reasons which influenced his judgment, or not; the decree not being void for want of jurisdiction, and not having been appealed from by the parties interested.- As to the other consideration, that such a removal was unnecessary, and that the whole matter might as well have been settled without his removal, either in the probate or in the appellate court, we are of opinion that the arguments used might properly have been urged on an appeal to this court, but that they cannot be considered when the object is to set aside a judgment of a court of competent jurisdiction in a collateral suit; the conclusiveness of the judgments of probate courts, on subjects within their jurisdiction, being as firmly established as of any other courts. Loring v. Steineman, 1 Met. 208. [112] The petition to the judge of probate, in this case, may not have contained all the facts which led the petitioner to make the request upon which the judge founded his decree ; although the facts therein stated laid the foundation for the application. And this we may well suppose from the case of Shelton v. Homer, 5 Met. 462, which was referred to in the argument, and in which it appears that, in only two days after the removal of Homer from his office as executor, a contract was made by him with the remaining executor, for the purchase of this same estate, which contract this court refused to enforce ; and it might lead to the supposition that the present suit is an attempt to accomplish that indirectly which could not be done by the parties themselves. As to this, however, we of course express no opinion. Upon the point now presented to us, we are of opinion that the decree of the judge of probate removing Homer from the office of executor was a valid decree, and is now of binding force. According, therefore, to the agreement of the parties, the defendants must be defaulted.