Banfill v. Estate of Banfill

The opinion of the court was delivered by Bennett, J. We think the judgment of the county court affirming the decree of the court of probate, should be affirmed. The statute, p. 333, § 9, in express terms, gives the probate court power to remove an executor, if he neglects to peform any decree of that court. The power is discretionary in the court, and it is for that court, in the first instance, to find the fact of the neglect of the executor, and then to remove or not as shall seem to the court meet. The county court may revise the doings of the court of probate, which in this instance has been done, and they have been affirmed. We are not called upon, so far as this part of the case is concerned, to revise the decision of the county court upon any question of law; and a decision resting in discretion, we cannot revise. This court does not sit as a supreme court of probate, but simply as a court of errors. The only remaining question arises in relation to the decree of the probate court, relative to the power of that court, to adjudicate upon the claim, which the executor made against the estate of his testator; and sought to have allowed him,'by that court, in his administration account. The court, it seems, held they had no jurisdiction over such a claim. The executor had been cited in to render his account, and to show cause why he should not be removed. Though it is true the entire decree of the court of probate was appealed from, yet the appellant, in his objections, only complains of [559] that part of the decree which relates to his removal. After setting out the decree of the court fully in the several particulars, and the reasons why he should not have been removed, he adds, it is true, “all which was against the will of the complainant and greatly to his wrong and injury, therefore,” he says, “ there was no good and sufficient cause for his removal, as aforesaid, and that the decree of the court of probate in that respect ought to be reversed and set at nought; because he says, he resides not out of this state, and has never neglected on due notice to render his account and settle the estate according to law, or perform any decree of the court, and has not absconded, become insane, or otherwise incapable or unsuitable to discharge said trust.” Issue was tendered, and we think the construction to be given the appellant’s objections must be, to confine them to that part of the decree, which removed him from his executorship. We presume the trial in the county court proceeded upon that ground, and that the only point litigated was in relation to his removal, which seems to be the only part of the decree which is complained of as being erroneous. We think, then, that only that part of the decree is properly drawn in question by the appellant’s objections ; and that we are not called upon to decide in relation to the power of the court of probate to. adjudicate upon the private claim of the executor against the testator’s estate. The judgment of the county court is affirmed with costs.