Chicago, Burlington & Quincy Railway Co. v. Gould
| Decision Date | 18 September 1884 |
| Citation | 20 N.W. 464,64 Iowa 343 |
| Parties | THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY v. GOULD |
| Court | Iowa Supreme Court |
Appeal from Des Moines Circuit Court.
THE plaintiff by petition to the circuit court asked that the appointment of defendant as administrator of the estate of Melville Madden, deceased, be revoked. The request was denied, and therefrom plaintiff appealed.
AFFIRMED.
H. H Trimble, J. W. Blythe and Parsons & Runnells, for appellant.
Poor & Baldwin, for appellee.
I.
The defendant was appointed administrator upon the petition of the widow of the intestate, and duly qualified by taking the oath and giving the bond required by law, and thereupon letters of administration were issued to him in the usual form. It is shown that he was at the time of his appointment, and continues to be, a non-resident of the state. Soon after these proceedings were had, plaintiff filed its petition in the circuit court, showing that the intestate, at the time of his death, was a resident of Des Moines county, where his widow and next of kin reside, and that his estate has no assets in the state of Illinois, where defendant resides. It is further shown that defendant has brought against plaintiff an action at law, claiming to recover the sum of $ 20,000 alleged to be due the estate.
It is averred that the appointment of defendant is illegal on account of his non-residence in the state, and for that reason he is not qualified for and eligible to the appointment. It is also assigned as a reason for revoking defendant's appointment that plaintiff, in case said "Gould should recover judgment against it, would not feel safe in paying the said judgment to him, and accepting from him discharges and acquittances."
The defendant moved the court to strike from the files plaintiff's petition, on the ground that it appeared therein that plaintiff had no interest in the estate which entitled it to be heard in the matter. The motion was overruled. Upon consideration of the matters set up in the petition, which were admitted to be true by the parties, the circuit court refused to grant the request of plaintiff to revoke the appointment of defendant as administrator.
Two questions are presented by the record for determination, namely: (1) Do the facts stated in the petition disqualify defendant, so that he cannot lawfully discharge the duties of administrator of the estate, and require the revocation of his letters of administration? (2) Does plaintiff have such an interest in the estate as to authorize it to move for the removal of defendant?
II. It will be observed that the only ground upon which the removal of defendant is urged, is the fact that he is not a resident of the state. It is not claimed that he is in any particular incompetent or unfitted for the place, or that his appointment is not in every respect calculated to protect the interest of the estate, of the creditors thereof, and of the heirs and widow of the intestate. It appears that his appointment was made upon the request of the widow, who, under the statute, is herself first entitled to the appointment. Code, § 2354. There is no statute of the state declaring that a non-resident is not qualified and is ineligible for appointment to administer upon an estate. It is provided that "administration shall be granted--(1) To the wife of the deceased; (2) To the next of kin; (3) To his creditors; (4) To any other person whom the court may select." There is no disability imposed by express provisions upon non-residents.
It is undoubtedly true that, for proper reasons, based upon the unfitness or inability of the persons designated in the first three of the classes, as presented by the statute just quoted, administration may be granted to some one of the class next named; and, if no one capable and fitted for the discharge of the duty is found therein, it may be imposed upon persons within the fourth class. It is competent for the probate court to determine the propriety of the appointment of any person who is presented therefor. The ability, character for integrity, interest in the successful administration of the estate, and the opportunity and facilities he will possess to discharge the duties imposed upon him, and other matters, are proper to be considered, and to control the appointment of an administrator. The non-residence of the person presented for appointment ought to be considered, especially in connection with the magnitude of the estate, the character of its assets, the extent of its indebtedness, and the extent of the personal attention of the administrator which probably may be required. Ordinarily, an estate having large assets, which would involve the transaction of much business in its management and settlement, ought not to be entrusted to an administrator who lives in a distant state. Other circumstances may be imagined, the occurrence of which would forbid the appointment of a non-resident administrator. Indeed, it may well be said that it ought not to be done in any case, unless it be made to appear that the interests of the estate, and of heirs and creditors, will be as well protected by such an administrator as by one who resides within the state. It follows that ordinarily, and without the existence of facts above contemplated, a non-resident ought not to be charged with the duty of administrating upon an estate. In re Estate of O'Brien, 63 Iowa 622, 19 N.W. 797. But it cannot be admitted that non-residence alone disqualifies one, so that he cannot be lawfully appointed an administrator in this state.
Code § 2347, declares that, "if an executor removes his residence from the state, a vacancy will be deemed to have occurred." This provision is not to be understood as prohibiting the appointment of a non-resident administrator. It simply provides that removal from the state by the administrator creates a vacancy in the place. The obvious reason for this enactment is found in the fact that, as we have pointed out above, the non-residence of the applicant is an important matter to be considered in issuing letters of administration, and ordinarily, in the absence of circumstances and conditions...
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