This proceeding was instituted in the county court of Arapahoe county to effect the removal of Sidney P. Haines as executor of the last will and testament of his mother, Diadamia Haines, deceased, and the appointment of a proper person as administrator with the will annexed. The petitioner was one of the heirs of Diadamia Haines. The petition charged that the executor was indebted to the estate in a sum of money very largely in excess of his distributive share, of which indebtedness he offered no settlement.
The executor answered denying any indebtedness whatever, and saying that the supposed debt was only a nominal one, and was placed at the sum of $12,443.14 to preserve the equities existing between the heirs if a resettlement of the estate should be found necessary. The residue of the answer is voluminous, but it consists mostly of averments in support of the foregoing statement, and reasons why the respondent should not be compelled to pay anything to the estate on account of the alleged indebtedness.
The judge of the county court having been of counsel for some of the parties, the case was transferred to the district court of the same county, by whose order it was referred to Sidney H. Dent to take testimony and report. It appears from the report of the referee that the executor was indebted to the estate on a promissory note made by him to the testatrix *Page 274 on the 20th day of March, 1889, for $10,000, due in two years, with interest at eight per cent per annum; on which, after deducting certain payments, there was due November 5, 1898, the sum of $15,343.78; and that he was also indebted to the estate on book account, in the sum of $2,447.55. It appears from the executor's answer, and from his testimony in the cause, which was in line with his answer, that he did not propose to account to the estate for that money, or any of it. It is true, as suggested by counsel, that it nowhere appears that the plaintiff ever, in terms, said that he would not pay what was due from him; but he denied that he owed anything, and, ordinarily, it is not to be supposed that one intends to pay what he does not owe. Practically, the difference between a denial of a debt and a refusal to pay it, is not very obvious.
The district court sustained some objections to the referee's report, but in the main approved it, and among the findings approved, was that fixing the indebtedness of the plaintiff to the estate. The cause was returned to the county court with instruction to enter an order removing the executor, and revoking his letters testamentary. It is objected that the court, in reaching its conclusion, took into consideration transactions by which the defendant's conduct, as executor, could not be affected; but we are concerned only with the judgment which was rendered. If that was right, it is immaterial what were the particular reasons upon which it was based. Nor do we regard the conduct of the other heirs or devisees towards the executor, or the estate, however reprehensible it may have been, as having any bearing upon the question whether the executor properly managed the estate. There was evidence to sustain the finding concerning the executor's indebtedness to the estate, and we are concluded by the finding. In behalf of the defendant, *Page 275 we are referred to the opinion in the case of Haines v. Christie, recently decided by our supreme court (28 Colo. 502). So far as the question involved here is concerned, we are unable to see what the defendant finds in that opinion favorable to himself. The action was for an accounting between the executor and the other heirs and devisees. The executor claimed there as here that the note he had given did not represent an indebtedness to the estate, and on the question of indebtedness, the decision of the supreme court was directly against him.
It is provided by section 4719, Mills' Ann. Stats., that letters testamentary, or of administration, may be revoked upon a number of grounds, among which is mismanagement of the estate. If an executor or administrator should refuse to collect debts due to the estate from others, he would be justly chargeable with mismanagement; and, surely, his refusal to account to the estate for money owing to it by himself, cannot be characterized by any milder term. — See Miller v. Hider,9 Colo. App. 50.
Let the judgment be affirmed. Affirmed.
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