Murray v. Angell

• Decision Date: 18 January 1890
• Parties: MURRAY v. ANGELL.
• Court: Rhode Island Supreme Court

19 A. 246

16 R.I. 692

MURRAY

v. ANGELL.

Supreme Court of Rhode Island.

Jan. 18, 1890.

Appeal from municipal court, city of Providence.

Application for the removal of an administrator.

George J. West and Ambrose E. West, for appellant. Simon S. Lapham, for appellee.

STINESS, J. The appellant was appointed administrator of the estate of his brother John Murray by the municipal court of Providence, and duly qualified. He represented the estate insolvent, and presented claims, in favor of himself and wife, for board and care of the intestate, which were allowed by the commissioners. The report of the commissioners was received and allowed by the municipal court, whereupon appeals from the judgment of the commissioners were taken by a sister of the intestate. Subsequently the sister applied to the municipal court to remove the appellant from administration of the estate upon the ground that he pretended to have chums against the estate for himself and wife which he had presented to the commissioners, as aforesaid. The municipal court adjudged the appellant to be "evidently unsuitable to discharge the trust reposed in him," and removed him from his office of administrator, appointing the appellee in his place. The appeal of Michael Murray from this action of the municipal court is now before us.

Pub. St. R. I. c. 184, § 24, gives authority to a court of probate to remove an administrator when he shall become "evidently unsuitable to discharge the trust reposed in him;" but, since the same chapter (section 2) provides for the appointment of a creditor as administrator in certain cases, it is clear that the mere fact that one has a claim against an estate is not a disqualification for the office, nor evidence of unsuitableness to discharge the duties of the trust. In Fenner v. Manchester, 6 R. I. 140, it was held that an administrator, although he might not bring suit for his claim, could present and prosecute it before the commissioners of an insolvent estate. As this court remarked in Perkins v. Se Ipsam, 11 E. I. 270: "It is well for an administrator to resign, when he finds the estate is insolvent, if he has a claim against it which is open to question." Such claims he has the right to have stricken from the report of the commissioners upon giving notice that he is dissatisfied with their allowance, in order to require the claimant to establish the claim in a suit at law. But if an administrator, instead of excercising that right, presses a...