(dissenting). — I regret to announce that, for the first time since the organization of the government of this State, a judgment will be pronounced herein by a divided court. I think that the principles which control the issues of drunkenness, improvidence, or want of understanding in these proceedings have been laid down with legal precision. I concur in the opinion of the majority in upholding the implied findings of the court below, that John A. Davis should not be adjudged incompetent to be appointed the administrator of the estate of Andrew J. Davis, deceased, by reason of these objections which have been alleged, heard, and tried. There is a substantial conflict in the evidence upon the cause of drunkenness, and upon this ground alone the ruling under review can be sustained. The testimony of the respondent with reference to his excuse, which he submitted under oath to the District Court, and by which he secured exemption from service upon the jury in the case of the Territory v. Clayton, 8 Mont. 8, is contradictory and unsatisfactory. He uses the words “ citizen ” and £< resident” regardless of their exact meaning. In one answer he testifies: “ I have excused myself .... by saying that I was a resident of Chicago. I excused myself on account of citizenship about three years ago.” His statements are consistent with both theories of guilt and innocence, and I am willing to give him the benefit of the doubt and dismiss the charge of perjury.
*266I have not been able to find in the authorities a satisfactory definition of the term “integrity,” which is in the statutes supra, relating to the competency of an administrator. Its meaning should not be restricted to what is generally understood by the word “honesty,” although the last is properly deemed by lexicographers a synonym. The administrator holds a trust of the highest character, and should act with strict impartiality in the collection of the property of the estate of the deceased, and the payment of the assets to the heirs. "When the duties of the position are considered, it is evident that the want of integrity, which renders a person incompetent to receive this appointment, should be defined. The following definition by Webster is apposite: “Freedom from every biasing or corrupt influence or motive.” The court below was called upon to determine judicially from all the evidence, not merely whether John A. Davis was an honest or a dishonest man in the ordinary signification of words, but whether he was free from all bias, influence, or motive, which would interfere with-the exercise of his functions as an administrator of the estate of his deceased brother. In arriving at a correct decision of this issue it will be necessary to observe the conflicting interests of the heirs, and the relationship of the parties who are asserting demands, which are hostile to the estate, and the conduct of John A. Davis concerning these matters.
Andrew J. Davis died March 11, 1890, and was buried on the eighteenth day of the month in the town of Somers, State of Connecticut. John A. Davis subscribed and verified, two days after the death of his brother, a petition for letters of administration upon the estate, and afterwards accompanied the remains of the deceased to the family burying ground. The petition, which alleges that the value of the real and personal property of the decedent is about four and a half millions of dollars, was not filed until March 28, 1890.
We will notice other facts about which there is no controversy. The capital stock of the First National Bank of Butte, in this State, is one hundred thousand dollars, and the undivided profits amount to the sum of six hundred thousand dollars; nine hundred and fifty of the one thousand shares of this bank stand upon the books thereof in the name of the *267deceased, A. J. Davis. A. J. Davis, Jr., is a son of John A. Davis, and was called twice to the witness stand in his behalf, and testified upon cross-examination that the certificates representing these shares were given to him in December, 1889, by his uncle; that they were not indorsed; that his brother, John E. Davis, voted the stock in the following January at a meeting of the stockholders under a proxy given by the said A. J. Davis; and that he claimed them as a gift. James A. Talbot, who testified for John A. Davis, corroborated A. J. Davis, Jr., respecting the conversation between the parties in December, 1889, about the disposition of the stock certificates. The members of this bar, who appear for John A. Davis in these proceedings, stated in this court that they are the attorneys for A. J. Davis, Jr., in maintaining his right of ownership in these shares of bank-stock. I do not wish to express an opinion which will convey an intimation of my views of this contention, but I do insist that it is the duty of the administrator of the estate of the deceased to resist in every court this claim of A. J. Davis, Jr., and obtain by a resort to legal remedies, if necessary, the possession of this property. Upon this subject, which involves the sum of six hundred and sixty-five thousand dollars, John A. Davis testified: “I don’t know that I ever heard it said that my brother Andrew, shortly before his death, gave his stock in the First National Bank of Butte to my son Andrew. I do not recollect of ever having asked my son whether or not that rumor was true.” A. J. Davis, Jr., testified that his father, during the past two or three years, “has been representing my uncle Andrew, the deceased, in different capacities. My uncle told me after father left the grocery business that he did not want, him to pin himself down to any active business; that between his Iowa affairs and the bank he could keep him occupied. He told me there were some old papers in the bank that needed looking after, and that my father was a very good hand at that, and could take charge of those matters, and he told me to pay him liberally for his services.” When this testimony is weighed, showing the knowledge of John A. Davis of the affairs of the bank and the deceased, his ignorance and neglect to inform himself upon business of such vital importance to the estate as well as to his son, are inexplicable. This, however, is a digres*268sion. It is a presumption upon which, we can act, when the contrary is not shown by the record, that John A. Davis will be governed by bias and the influence of parental love in favor of his son in this matter, and that he will not therein protect vigilantly the interests of the estate. It is the policy of the law to exclude men from such a trial, and the authorities bearing upon this proposition will be examined hereafter.
But assuming that this state of facts is insufficient to justify the Probate Court in refusing to appoint John A. Davis the administrator of the estate, it should compel a rigid scrutiny of the evidence with reference to his qualifications. I am unable to reconcile his conduct'with honesty or integrity in the treatment of the heirs of the deceased. After the funeral, a meeting of some of the relatives was held at the Massasoit House in Springfield, State of Massachusetts. Among those present were two sisters, Miss Diana Davis, aged seventy-six years, and Mrs. Sarah M. Cummings, aged sixty-nine years, two brothers, John A. Davis and Erwin Davis, and a number of nephews and nieces. Erwin Davis made some remarks upon this occasion, and the transcript contains the testimony thereof by Miss Cummings, Mr. Cummings, Mrs. Cummings, Mr. Ladd, Mrs. Ladd, Mr. Cornue, Mrs. Cornue, and Mr. Root. In ordinary cases, the general effect of the proof may be stated, but when the court is divided, and vast interests are involved, prolixity is unavoidable, and I will quote the language of each witness: —
Mrs. Cornue testified: “If there is a will, an estate can be settled within five years. Yet at the end of five years there might not be a dollar for any of us. If there is no will, it will take ten years, and at the end of ten years there probably might not be a dollar for us, as there will necessarily be great litigation. He spoke of there being debts very likely, and he said it was reported that there was an illegitimate child, and that if there was, that there would not be a dollar left for any of us. . . . . And then he turned to uncle John and said: 'You have lived in Montana and know the laws of Montana, am I not right about the time it takes to settle an estate?’ And uncle John said: 'Yes, it takes from five to ten years to settle an estate in Montana.’ .... He (uncle Erwin) mentioned five *269years as the shortest time in which the heirs could receive anything, and then only if there was a will.....And if there was not a will, ten years was the shortest time in which they could get anything.”
Miss Cummings testified: “He (Erwin Davis) also stated that if there was a will it was possible that the estate could be settled in five years, and if there was no will it would take ten years or more before a distribution of the estate could take place.....He spoke several times in this way: ‘ If there be an estate.’ .... I think those were his words. Near the close of his remarks he turned to his brother John and asked him if he was correct about the laws of Montana, as he (John) had lived there, and John replied that he was; that it took about ten years to settle an estate in Montana. Uncle Erwin said that if there was no will, everything might be used up in litigation. He said he knew there would be large debts. I am sure he used the word ‘large’ in speaking of the debts.”
Mr. Cummings testified: “He (Erwin Davis) went on to state that if there was a will it would take five years to settle the estate in Montana; if not a will, from five to ten years. And if' there was any estate for us it would be obtained after a great deal of litigation. He spoke of the difficulty of settling an estate in a new Territory, and after speaking of that he turned to uncle John and asked him if he was not right. And uncle John said he was; that it would take from five to ten years to settle the estate.”
Mrs. Cummings testified: “Erwin Davis said at that meeting that if there was no will that would be the worst possible complication of' the affair, and that in that case it would take from five to ten years to settle up the estate, if there was any estate, which remarks he made several times, ‘if there was any estate.’ He said there would probably be large debts..... At the close of the statement he asked uncle John if he was right about its taking so long to settle up an estate in Montana, and uncle John said he was, and that it would take from five to ten years.”
Mrs. Ladd testified: “He (Erwin Davis) said it was to be hoped there was a will, because, in that case, if there was anything coming to us we might get it in five years, and if there *270was no will it would be ten years, and perhaps we would never get anything.....If the public administrator got it it would be used up in litigation, and there would probably be very little, if anything, left. He said there was one that claimed to be an illegitimate child, and that if there proved to be such a child, he would claim all, and there would be nothing left for us. At the close of the remarks he turned to uncle John and asked him if he was right about settling an estate, as he had lived in Montana and knew the laws of Montana, and uncle John said: ‘Yes, it would probably take from five to ten years to settle an estate/ ”
Mr. Ladd testified: “ He (Erwin Davis) further said that it was to be hoped that there was a will, in which case the property might be settled so that the heirs would receive what they were entitled to within five years; that if there was no will considerable litigation would necessarily follow, which would probably take so much time that it would be ten years before any division of the estate could be made, even if there was any of it to be divided.....There was a son who claimed to be an illegitimate son, and if he came forward to claim the estate, he could claim it, and there would be nothing left for anybody else.....He said there were probably large debts against the estate. Those were his words, as near 'as I can remember them.....He thought the estate would be settled in five years if there was a will, but that it would take ten years if there was no will. He then turned to his brother John and asked him: ‘Is that not so, John? You have lived in Montana, and know the laws out there/ And John Davis replied: ‘Yes, you are right; it would take from five to ten years to settle an estate in Montana/ ”
Mr. Cornue testified: “He (Erwin Davis) said if there was a will it would take five years to settle the estate, and if there was no will it would take ten years. He said there were debts against the estate.....At the close of his remarks Erwin turned to his brother John and said to him: ‘You have lived in Montana and know the laws there, what do you say?’ And uncle John said: ‘Yes, that is right; it takes from five to ten years to settle an estate there/”
Mr. Root testified: “He (Erwin Davis) said that a will had *271been made a considerable period before that, and with codicils, and that it was to be hoped that there was still such a will; and that in case there was a will, whoever was entitled under it would receive what was given to him in five years; and if it should turn out that there was no will, the estate could not be settled for ten years, and perhaps not then, as necessarily there would be a great deal of litigation; and then he added that, will or no will, we must take care of the indigent members of the family; .... that it was reported that there was an illegitimate son; that if it should turn out that there was such a son, that son would inherit everything, and there would be nothing for us; that,instead of the estate being divided into elevenths there would be but one portion, and that that son would get it.....He said something about there being debts, though I cannot remember just what, but the impression left upon my mind was that he said that it would be found that uncle Andrew had large debts.....He turned to his brother John and said: ‘Brother John, am I right about the length of time it takes to settle an estate in Montana? You live there and you know.’ And uncle John said: ‘Oh yes, about five or ten years to settle an estate in Montana.* **
The effect of these statements of Erwin Davis, and of the apparent concurrence of John A. Davis in their accuracy, upon the heirs who composed his audience, can be readily seen. They were addressed to persons who lived thousands of miles from Montana, and had no knowledge of the financial condition of the deceased, or the laws of this State which regulate the distribution of estates. The youngest of the brothers and sisters of the decedent was then sixty-three years old, and confidence would be naturally reposed in John A. Davis. He had been, according to the evidence, the trusted agent of his deceased brother, and possessed the information which the relatives at that time needed. He then knew that the deceased owed small sums, if anything; that the value of this estate exceeded seven million dollars; and that the settlement of estates in Montana did not require five or ten years, or any similar period of time. It was the duty of John A. Davis under these peculiar circumstances to have told the whole truth, but he deliberately refused to afford his kinsmen any light, and said nothing about his *272petition for letters of administration, which had been prepared before his departure from this State in the same month. The respondent is silent in his testimony concerning these remarks of Erwin Davis, and all that he says upon the point is embraced in the following brief sentences: “There was a meeting of the heirs at Springfield, Massachusetts, after the funeral. I said nothing to the heirs assembled there. I had no chance to do so. I might have talked to the individual members of the family, but not to them when assembled.” The absurdity of this excuse is evident when the record is looked into. All the foregoing witnesses, Mr. and Mrs. Cornue, Mr. and Mrs. Ladd, Mr. and Mrs. Cummings, and Miss Cummings testify that there was a pause at the conclusion of the speech of Erwin Davis, and Mr. Root, in substance, observed: “ If no one else had anything to say, he had.” At this gathering of an informal nature, there was nothing which could prevent John A. Davis from having a “chance” to talk. Another part of the evidence should be commented on in this connection wherein John A. Davis says: “Erwin is here in the city, and has been for ten days. I have seen him every day of that time.” If any of these witnesses had erred in stating the remarks of Erwin Davis, it was within his power to correct them, but he did not vindicate this privilege by going upon the stand. The court below, in my opinion, did not give to this evidence, which is not controverted, its proper weight.
In another particular, I think that John A. Davis is proved to be wanting in integrity. Erwin Davis requested the heirs at this meeting to sign an instrument of some character which conferred upon him some authority to represent them in the settlement of the estate. Root, the appellant, opposed this action, and advised every one of them to consult an attorney before he signed any paper, so that he could realize fully the consequences. Mr. Cummings testified: “ After Mr. Root had finished, and had gone out, and the rest of the company, uncle Erwin said to uncle John, ‘What was the matter with Root?’ He asked uncle John if he supposed Root had been drinking, and uncle John said he thought so. Uncle John also then said not to have anything to do with a lawyer; that he had had a good deal of law business, and found it was very expensive, *273and that there were but few honest men among lawyers.” Mrs. Cummings testified: “He (John A. Davis) also said that it was necessary to be united in the affair, and he turned to me and said: ‘We don’t want any lawyers to be mixed up in it at all; that there were very few honest men among lawyers.’ That if they got mixed up in it the estate would go in litigation.” The listeners would infer from these statements that John A. Davis did not intend to protect his interests in the estate with the aid of attorneys, but the following portions of his testimony show his duplicity: “Between the time my brother Andrew died and the time I left here with the body, I saw counsel here. My son Andy was with me at the time. I told Andy to see Judge Dixon and have him draw a petition for letters of administration for me. I had not seen Mr. Forbis or his firm prior to signing the petition. It was my son Andy who saw them. I instructed Andy to employ Forbis and Forbis.”
The same spirit of unfairness or deception upon the part of John A. Davis is shown in his efforts to assist Erwin Davis in procuring the signatures of the heirs to the written instrument which has been referred to. Miss Cummings testified: “ The meeting adjourned until one o’clock the next day. On that next day I had a conversation with my uncle John and uncle Erwin; my mother was present, also my sister, Mrs. Cummings, and aunt Diana. The conversation was in the forenoon, in the parlor of the Massasoit House. We were engaged in social talk at the first, when uncle Erwin asked my mother and aunt Diana if they. were ready to sign that little paper. And my aunt Diana said: ‘Oh, oh, no; wait until the rest come. You said I might be the last to sign it.’ Uncle John spoke and said: ‘If no one makes a beginning, if no one signs first, it will never be done,’ and he related a little story to illustrate his meaning. He said his wife was sick at one time, and he went to engage a nurse, and she would not go without a hired girl; and he went to get a hired girl, and the hired girl would not go without a nurse. After uncle John had told that story my mother told uncle Erwin that she had decided not to sign any paper. Erwin told her, ‘Very well. Then I shall do nothing for you. I shan’t ask you to sign again; indeed, I shan’t allow *274you to sign if you wish to; I shall go out to Montana and do for myself.’ And my uncle John spoke up and said: ‘So shall I go out and do for myself.’ Both Erwin and uncle John spoke in a threatening manner; both of them. And uncle John added, by way of threat, ‘I can go in with the boy and take the whole.’ That was in uncle Erwin’s presence, and in my mother’s presence, and in Diana’s presence. I then turned to uncle Erwin and said: ‘If he can do that, a smart lawyer certainly can.’ And Erwin said, ‘No, no; he does not mean that.’ Uncle John said to my uncle Erwin that it was ignorance on our part that made my mother refuse to sign the paper. He said that impatiently. I said in answer to that: ‘I don’t blame you for calling us ignorant, for we are ignorant, and we wish to know what we are doing.’ ”
Mrs. Cummings testified about the same interview: “Mr. Erwin Davis asked Diana Davis if she was ready to sign the paper, and she did not want to sign. She wished to wait until the other sisters came, and not to sign first. Mr. John Davis said that it was necessary for some one to sign first; that if they all put it off) they would never make a beginning.” John A. Davis testified: “I do not remember of a power of attorney being procured by brother Erwin to be signed by some of the elderly sisters. I do not remember of any endeavor by brother Erwin to get such signatures to a power of attorney in his favor. I myself did not make any endeavor to get any of the parties to sign for Erwin.” I have already observed that Erwin Davis was not called as a witness, although he was in the city of Butte during the hearing. The topics upon which John A. Davis swears that he talked are mentioned in his own words: “ As to the character of the conversation during that time, I had not seen my old sisters for about thirty years, nor my nephews or nieces; it was a sort of pleasant sad meeting. .... He (Erwin Davis) asked about my health, and I asked about his, and I joked my old sisters a little; told them they looked younger than I expected to find. They told me I looked young. That was the general character of the conversation.” This is a clear admission from the lips of John A. Davis that he never communicated to his relatives a single fact regarding the estate of the deceased. The occasion demanded of him *275candor, but everything within his knowledge was studiously concealed.
It is proved by the testimony that Erwin Davis is indebted to this estate in the sum of five hundred and thirty-six thousand dollars, which is evidenced by five promissory notes, that were kept in the vaults of the First National Bank of Butte. It is also shown that the deceased in his lifetime conversed thereon with A. J. Davis, Jr., Mr. Cornue, Mr. Boot, and Mrs. Cornue. A portion of this indebtedness has been due since the first day of January last past, and there are good reasons for thinking that Erwin Davis does not intend to pay the same, and that the entire amount may not be recovered for the benefit of the estate. There seems to have been some mysterious purpose in the acts and declarations of Erwin and John A. Davis to mislead the heirs. Twenty-nine telegrams, which passed between Erwin Davis and A. J. Davis, Jr., were offered in evidence and inspected by the court, and excluded upon the sole “ground that the applicant, John A. Davis, was not shown to have any knowledge” of them. These persons seem to have intimate relations respecting this estate, which could not be settled in the ordinary course of correspondence. The testimony of John A. Davis is another remarkable instance of want of knowledge, if not integrity, by one who was paid liberally for his fidelity to the business of the deceased. “I have never heard that my brother Erwin owed him anything.” A question of veracity arises between John A. Davis and Mrs. Cornue which I will not notice, for the view of the court upon this conflict cannot be disturbed. John A. Davis visited the so-called illegitimate son in the State of Iowa before his return to Butte, and prior to the filing of his petition for letters of administration, and testifies: “ Erwin and I, and several of us,, have combined in a common defense against the Iowa boy.”
When all the evidence is compared, I am forced to draw the following conclusions: A. J. Davis, Jr., asserts a claim to personal property, which prima facie belongs to this estate, and is of the value of six hundred and sixty-five thousand dollars, and he and the attorneys who have been retained to litigate his rights in the first place are also employed by John A. Davis in these proceedings. Erwin Davis is indebted to the estate in *276the sum of five hundred and thirty-six thousand dollars, and is striving to evade the payment thereof, and by his attorney advocates the appointment of John A. Davis as the administrator. But these parties, whose attitude is that of open war against the heirs of this vast estate, are united in supporting John A. Davis for the administratorship, and in opposing the application of Henry A. Root for the trust. The objections to Mr. Root rest upon the ground of his non-residence, and do not affect in any degree his ability or integrity. The “ Iowa boy ” did not offer any testimony in the court below, and is not represented in this hearing, and the combination of Erwin and John A. Davis against him appears to have been entered into without a just cause. The pretensions of this child, and the law applicable to him, have been misrepresented by Erwin and John A. Davis to weaken the confidence of the heirs in their inheritance and induce them to sacrifice their rights. None of the facts affecting this estate, which were within the breasts of Erwin and John A. Davis, have been revealed to the relatives. A conspiracy has been formed by A. J. Davis, Jr., Erwin Davis, and John A. Davis to defraud the heirs, and the court below erred in excluding the testimony showing all their acts and declarations in furtherance of its objects. The appointment of the respondent as the administrator will enable A. J. Davis, Jr., and Erwin Davis to gain their ends respectively by collusion, in the waiver of the proof of material facts, or the confession of allegations, having no other foundation than perjury. On the other hand, the selection of Mr. Root would be the most efficient mode of defeating the schemes of A. J. Davis, Jr., and Erwin Davis for the spoliation of this estate. The argument of counsel for the respondent that the administrator will give a good bond, conditioned according to law, does not remove the danger which has been pointed out.
In Stearns v. Fiske, 18 Pick. 24, Mr. Justice Wilde, as the organ of the court, said: “ It appears that the appellant was very much under the influence of Barker, a debtor to the estate to a large amount, and who is charged with combining with the intestate, in his lifetime, to defraud his creditors. The appellant’s application for administration was made at his request, and not to protect or subserve her own interest. This *277influence might and probably would be exerted to the prejudice of the creditors, had the appellant been appointed administratrix, and if they might have a remedy against her on her bond, it would increase the expense of litigation, for the recovery of which the creditors could have no legal adequate remedy. And besides, au administrator, if so disposed, may prejudice the interests of those for whose benefit the estate is administered, without being exposed to any action.”
In Drake v. Green, 10 Allen, 124, Mr. Justice Hoar, in the opinion, says: “Thus, for example, a person who applies for administration may have interests conflicting with those of the estate. The probability that these would prove an embarrassment in the proper performance of his duty might be a sufficient reason for a refusal of the judge of probate to intrust him with the administration.” In Putney v. Fletcher, 148 Mass. 247, the court say: “ An executor or administrator is deemed unsuitable when he has any conflicting personal interest which prevents him from doing his official duty.” In State v. Bidlingmaier, 26 Mo. 483, the court, by Mr. Justice Scott, say: “So, in effect, Adolph Kehr, as administrator of one estate, is prosecuting a suit against Adolph Kehr, as administrator of another estate. How is the defendant’s estate to be protected? It is not for Kehr, with the bias on his mind, to determine whether it is indebted or not. That estate should be defended by one who has not an interest that it should go undefended.” In Moody v. Moody, 29 Ga. 519, there was a “contest between two brothers for administration on the estate of their father,” and the court, in speaking of one of them, said: “And so of the other fact, that he was claiming for himself a large part of the estate left by his father. If this were true, his interest was hostile to the interest of the estate, and estates, like everything else in life, are generally better off in the hands of their friends than in the hands of their enemies.” In Pichering v. Pendexer, 46 N. H. 69, the court discussed the fitness of Pickering to serve as an administrator, and said: “ It would seem that he asserts a claim to a considerable portion of the land in the occupation of the deceased at his death, and that this claim is contested by the heirs; and it may be the duty of the administrator to contest this claim, or at least to investigate it thoroughly, *278and determine fairly whether it ought or ought not to be contested ; and that for neither of the duties would he be a suitable person. It is argued by his counsel that he must give bond for the faithful discharge of all his duties; and that is true; and yet we think it would not be a sound exercise of discretion to appoint a person whose interest is clearly opposed to that of the persons for whom he acts.” In Ellmaker’s Estate, 4 Watts, 34, the court says: “But again, there is reason to believe that the appellant has attempted to overreach the heirs, by trumping up a false account against the estate. The least taint of fraud is a conclusive objection. It works a legal incompetency to perform the duties of the office: an office of such trust and confidence as should, under no circumstances, be committed to a person wanting in good faith, and in whom confidence cannot be reposed.” In Bieber’s Appeal, 11 Pa. St. 157, the court say: “The able opinion of Mr. Justice Rogers, in Ellmaker’s Estate, 4 Watts, 38, is directly in point.....It was further held in that case, that the right of one Swartswelder was properly rejected on the ground of expediency. The objection is insurmountable when he stands as a litigant party in opposition to the other heirs. Courts have constantly declined putting in persons as administrators so situated. This is a strong case. Here Isaac was already in possession of more than half the estate. It is said he claimed it as a gift from his mother. This position rendered him an incompetent person to perform the duties of the office of administrator, which is one of trust and confidence, and ought to be committed to a person who has no interest in opposition to the other heirs of the estate.” Mr. Gary, in his work on Probate Law, writes: “A person is not suitable merely because he is ready to give a bond with sufficient sureties, because parties damaged by official misconduct may be subjected to expense of litigation for which they can have no adequate remedy, and an administrator may prejudice the interests of parties interested without being exposed to an action on his bond. When there is good reason to suspect that the purpose is to promote some interest adverse to that of the heirs or creditors of the estate, it would seem that the person would be unsuitable.” (§ 267.) In Thayer v. Homer, 11 Met. 104, the court say: “But unsuitableness implies no want of *279capacity or mental infirmity, but an unfitness arising out of tbe situation of the person in connection with the estate of which he is administrator, either by reason of his being indebted to it, or having claims upon it, or in the interest he has under a will, or his situation as an heir at law.”
While the application of some of these cases may be limited by the statutes under which they were made, the legal doctrines which are announced are undoubtedly correct, and would prevent the appointment of the respondent as the administrator of this estate. I maintain this proposition, when the testimony is weighed. But the relations of the parties have been radically changed by the fact which has been brought to the attention of this court by the attorneys for John A. Davis. They have caused to be filed with the record in the case the photographic copy of a will of the said Andrew J. Davis, deceased, which in effect gives to John A. Davis the entire estate, subject to “a lifetime maintenance” for three persons, who are not the lawful heirs. The executors who are nominated in this instrument have departed this life, and John A. Davis filed, July 25,1890, in the court below a petition duly verified, which concludes with the following prayer: “Wherefore, your petitioner prays, that the order hereinbefore mentioned, made by this court on the 28th of April, 1890, appointing him administrator of the said estate, be vacated and set aside; that the said will, a copy whereof is hereto annexed, be admitted to probate in this court and established by the judgment thereof; that the usual order be made fixing the day for the hearing of this petition, and due notice thereof be given to the heirs at law and devisees under said will of said deceased; and that the letters of administration, with the said will annexed thereto, be issued to your petitioner.” This new matter should be treated like the suggestion to this court of the death or disability of a party, or the transfer of his interest in an action or its settlement pending an appeal. The respondent, who has voluntarily produced this supplemental record, must abide by the consequences of his conduct. It is conceded by counsel that the appellant has filed objections to the probate of this will on the ground of its invalidity, while Erwin Davis and A. J. Davis, Jr., support the petition of John A. Davis, and admit that the document is *280genuine and legal. Tbe harmonious combination of these three members of the family continues unbroken, although the instrument will “cut off” Erwin Davis without any share of the estate. The unfavorable conclusions which have been already stated are strengthened, if possible, by these strange and seemingly inconsistent acts of the parties. They remove any doubt which may have been entertained concerning the state of hostility between John A. Davis and some of the heirs of this estate, and demonstrate that his appointment is in conflict with the authorities, and one “ not fit to be made.”