Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-08-28

entirely unsupported and cannot stand.
But if we were to concede that the view
taken by the Court in its finding and con-
clusion as to the law was correct, and
INIT that at the time stated Wilson was
still holding this property as executor OF
the estate of Jane Wilson. deceased, even
then do not think the evidence sufficient
to sustain the ground of encouragement.
The Court, in its findings of fact, terms
the investment of the funds of the estate in
United States bonds by Wilson, as hereto
fore recited, q speculation with said funds.
But l do not think the transaction will
Justly bear any such designation in the
sense in which the term is employed by the
Court. Technically speaking, any invest
ment of the kind might possibly be called
speculation in one sense, but here the
language is used by the Court to character
ize an act of the executor as q culpable vio-
lation of his duty in managing the property
OF the estate.
Certainly the evidence will not put that
face apcn this transaction. Wilson was
proceeding upon the idea that he was then
administering said property as guardian,
wherein he seems under the law 10 have
been right. He had on hand a consider
able amount of money of this estate bear
ing no interest. The notes, representing
by far the larger part of the interest-bear-
ing securities, were past due and about to
be taken up, when interest on them would
cease. He was required to absent himself
from the State for an uncertain period,
while the property in its then situation re-
quired, it may be assumed, the constant
attention of someone to look after it. In
der these circumstance Wilson consulted
his attorney and was advised that he could
make an investment of the funds. He went
to the cashier of his bank and was advised
by him to invest in Government bonds.
This he concluded to do and the evidence
as 10 the manner In which he conducted
the matter, shows, in its circumstantial de-
tail, only the most anxious and scrupulous
desire on his part to AVOID even the ap-
pearance of evil, and to do that alone
which would best preserve the property of
his wards, and, at the same time, subserve
their interests. There is nothing in the
evidence or findings, nor was any claim
made at the argument, that Wilson in any
way attempted or intended to wrong the
estate in this transaction, or had any mo-
tive Of personal gain; or that he was ac-
tuated by any wrongful intent in the mat
ter whatsoever.
He seems to have had no other object or
end in view than to put the property in a
more secure shape than he conceived it to
be in at that time, in order to protect his
wards, his bondsmen and himself from
any possit lie loss through oversight or neg
lect on his part.
1t is true, the Court found that the estate
lost by the purchase of these bonds. to the
o,~ ts.fs =
ence in the rate of interest the notes were
drawing at the time of their transfer, from
that drawn by the bonds, and therefrom
doubtless is partly drawn the conclusion of
mismanagement. But | find no evidence
directly supporting this finding. 1t must
be based upon the assumption that those
notes would have remained OUTSTANDING
and have continued to draw the same rate
of interest up 10 the time of this trial,
whereas that is directly negatiVed by the
evidence that most of these notes were past
due and likely to be taken no at any time,
when interest would have ceased so far as
they were concerned.
But if this loss did actually accrue by
reason of that investment, not through any
dishonest act of the executor, as that is
not pretended, but by reason solely of an
error of judgment on his part in making
tllC lllH CSliAtiit lldl MOUlu uOL De
cause for his removal. He might upon
proper showing be chargeable on settle
ment of accounts, with the amount lost,
but it would not be sufficient to work a
revoc&ion of his letters as executor. AS
said by the Court in the estate of Stow
On. Y. ?. Rep, p. $50:
AN executor should be removed on
some ground of delinquency, not on the
ground of error of judgment merely. |
am not aware that these executors have
committed an error of Judgment; if they
have, to an extent to hold them respon-
sible, this is not the time to charge them !;
but when their accounts come in for settle
ment the accounts can be surcharged if a
proper case be made" See also estate of
Post, Ny. p go.
While mismanagement of an estate
should unquestionably work the removal
of an executor, the mismanagement must
consist o. such things as clearly demon
strate want Of fitness in the executor to
carry out his trust, arising either from dis
honesty or want of natural perceptions.
An executor cannot be removed at the
discretion of the Judge. His Office is one
held as matter of right, not at discre-
ton, and be can only be removed for cause,
and a removal should not be made for
slight cause. (McFadgen VS.. Council, 1
Am. Probate Rep, 453) All that sound
public policy requires is that they shall act
in good faith and Use ordinary care" (S4
n. c., GIG, and see also IS Reporter, SAG;
Is Reporter, 381)
After careful examination and review
of the whole record, l am satisfied that the
evidence and facts do not support the con-
illusions of the Court, and that the order
removing the executor was improperly
made. 1t results from these views that
the motion for new trial herein should
be granted, and an order will accordingly
be entered to that effect
w. C. VAN FLEET, Judge.
Filed August 81, 1886.