Estate of Pike

LyoN,' J. The statute under which this proceeding for the removal of the executor was instituted, is as follows: “If an executor shall neglect, after due notice given by the judge of the county court, to render his account and settle the estate according to law, or to perform any judgment of the court, or shall abscond, or become insane, or otherwise incapable or unsuitable to discharge the trust, the county court may remove such executor.” E. S. 1858, ch. 98, sec. 9, as amended by ch. 140, Laws of 1871 (Tay. Stats., 1213, § 10). This is substantially the statute of Massachusetts of 1783, ch. 24, sec. 10, which received judicial construction in that state long before it was enacted here. In Winship v. Bass, 12 Mass., 201 (decided in 1815), speaking of this-statute, Chief Justice PARKER, who delivered the opinion of -the court, said: “ The statute gives a very broad discretion to the judge, evidently intending not to define or limit the disabilities which should be the causes of removal, blit to leave room for the application of the power to all causes which may occur to render the execution of a will, or the administration of an estate, perplexed or difficult.” This construction was approved by the same -court in Thayer v. Homer, 11 Met., 104, decided in 1846. The same construction of our statute was practically adopted by this court, in Cutler v. Howard, 9 Wis., 309. As the statute then was (E. S. 1858, ch. 98, sec. 9), nonresidence of the executor was cause of removal; yet this court affirmed the judgment of the county court refusing to remove for that cause alone; holding that it was in the discretion of the county court to retain the executor, although a statutory cause of removal existed, such cause not going to his fidelity to his trust, or his capacity to execute it. Under a familiar rule, the construction given to the statute by the supreme court of Massachusetts before it was enacted [396] in this state, ought to prevail here; and we adopt that construction the more readily because we believe it to be the true one. The question to be determined on this appeal is, therefore, whether the removal of the executor by the county court was an improper exercise of the discretion in that behalf vested by law in that court. This question must necessarily be determined from the evidence in the circuit court, all of which is preserved in the bill of exceptions. If the findings of fact are sustained by the evidence, we think the removal was proper. More than that, if the finding that, “ at the time of filing the petition there was, and still continues to be, an acrimonious and hostile feeling between the appellant and respondent, which intercepts and prevents such a management and husbanding of the estate of Oliver Pike, deceased, as prudence, sound policy and the interests of the devisees and creditors require,” is established by the proofs, we think that of itself would make a case for the exercise of the discretion of the court. Such a condition of affairs, whether chargeable to the executor or not, would inevitably render the execution of the trust peiqffexed or difficult, and would be likely to interfere with the proper management and disposition of the estate. We by no means hold that a quarrel between an executor and a devisee or légatee is in every case cause for removing the executor. The blame of such quarrel may rest entirely with the devisee or legatee, and its existence may not endanger the interests of any one, or interfere in the least with a proper execution of the trust. In such a case, if the executor performs his duty, it would or might be an abuse of discretion to remove him. But we have no such case before us. Looking into the proofs, we find considerable testimony tending to support the finding of fact above quoted. The testimony is voluminous and conflicting, and a review of it here would be a waste of time and space. It must suffice to say that, after careful examination, we are unable to find any satisfactory preponderance of proof against such finding. It [397] is the settled rule of this court that in such a case the finding will not be disturbed. A question has been raised as to the necessity of making the other devisees or legatees under the will parties to this proceeding. We are not aware of any statute or rule of practice which requires this to be done. We are inclined to think that any person interested in the estate may commence and prosecute such a proceeding, independently of other parties having a like interest, unless the county court in its discretion should think proper to bring in such other parties. Certain other questions were argued by the learned counsel. Such of them as are involved in the determination of this appeal are of minor importance, and cannot affect our judgment. The questions above considered are believed to be the controlling ones in the case. <It follows that the judgment of the circuit court must be affirmed. By the Court.- — -Judgment affirmed.