Citations
- 243 F.2d 240
Full opinion text
WASHINGTON, Circuit Judge.
The deceased, Mrs. Susannah Viola Goldsborough, left a husband and six children (by a former marriage) surviving her. Controversy arose as to whether certain real estate standing in the deceased wife’s name and a sum of money deposited in the husband’s name were in fact the property of the husband. The husband and one of the daughters were nevertheless appointed as co-administrators of the estate. Subsequently the daughter filed a motion as administrator for removal of the husband as coadministrator. Following arguments at a hearing, the District Court removed both previously-appointed co-administrators and appointed a neutral party in their place. The husband appeals from that order and also from a subsequent order replacing (by another neutral) the neutral party first selected. The other former co-administrator not only makes no objection to her own removal but urges that the court’s action was a proper exercise of discretion.
Under all the circumstances, we consider that the District Court did not abuse the authority conferred upon it by Section 20-107 of the District of Columbia Code 1951. That section empowers the court, in the case where one joint administrator complains that he fears that he is “likely to suffer” by an improper use or misapplication of assets by the co-administrator, to remove the latter and to leave the complaining administrator in charge of the estate, “if said complaint shall be adjudged well founded.” Here the daughter’s complaint alleged inter alia that the husband claims ownership of some $8,900 belonging to the estate, and was well founded in the sense that a real controversy as to ownership existed, and that the husband was occupying an equivocal position. We do not interpret the statutory language as necessarily requiring the complaint to be adjudged well founded in the sense that there be a final determination on the merits of the question of ownership of the controverted property, before removal can be had. Since a complaint may be filed if the joint administrator apprehends that he is likely to suffer by the misapplication of assets, and thus before the misapplication has occurred, the statute plainly does not contemplate a determination on the merits in all cases, although of course this may properly be had in an appropriate situation. Moreover, the statute provides that the remaining administrator "shall be entitled to recover, in an action on the case, for any loss or damage” sufFered as a result of the actions of the one removed. In the case of assets alleged to be misapplied, the statute would hardly mention a subsequent suit to recover if the merits were required to be determined before removal was had.
Under the Maryland statute, virtually identical to this one, it has been stated that no action (other than an application under the statute) can be taken by one administrator against his co-administrator to recover property so long as the letters of the one complained ofi remain unrevoked. Flaks v. Flaks, 1938, 173 Md. 358, 364, 196 A. 116, 119. An administrator who is obliged to defend the estate against a claim asserted by himself is in a situation both anomalous and difficult. The difficulty is enhanced where there are joint administrators. The framers of the statute evidently recognized that the administration of the estate would be defeated or at least severely hampered if the joint admmi