After decision rendered herein on February 11, 1932, a rehearing was granted upon this question only:
"In view of the litigation already had, clearly indicating that further litigation will follow to determine the respective shares of the widow and the son of the deceased, the executor named in the will, is it improper practice to permit the administrator already appointed to remain such pending the litigation?"
The arguments presented upon the rehearing have convinced the court that the expedient adopted in the former opinion, to shorten the litigation by assuming what the courts below would do if the widow should persist in her endeavor to have an impartial representative in charge of the estate pending the future litigation which evidently is unavoidable, is not proper practice. G. S. 1923 (2 Mason, 1927) § 8790, provides for the removal of a representative for cause, one being when he becomes unsuitable for discharging the trust. This can of course be done only upon a hearing before the probate court, where the person who desires the removal must petition therefor, specify the grounds for removal, and prove them. There is the right of appeal from the decision of the probate court. In removal of an executor the court exercises judicial discretion, and it is not proper for this court now to assume what that will be when properly presented to the courts below. It has not been *Page 634 so presented. G. S. 1923 (2 Mason, 1927) § 8768, as held in the opinion heretofore filed herein, is mandatory and requires the appointment of appellant executor, he being named as such in the will and being legally competent to act.
The order is reversed.