dissenting.—I agree with the view expressed in the opinion herein, prepared by Judge Strahak, that an executor is not required by the duties of his office to pay a commission above legal interest to secure a loan of money with which to redeem property which has been sold under a decree of court, and that he is not bound to pledge or incumber his own property or effects in order to secure a loan for such purpose. I agree, also, with the view that it is the duty of an executor or administrator to file an inventory of the estate, as provided in section 1112 of the Code of Civil Procedure, and that a neglect on the part of such executor or administrator to comply with such duty subjects him to removal. But I do not agree that such a neglect upon the part of the appellant in that particular is shown in this case as would authorize his removal. The appellant was selected by the testator to administer upon the latter’s estate, and I do not think the county court had any legal discretion to remove him without a substantial cause. Said court should show, it seems to me, some good reason for exercising so important a prerogative before it can be sanctioned by this court. The removal of an executor should, upon general principles, require a stronger case than the removal of an administrator. The latter is appointed by the court, while the former is named in the will of the testator as the' particular person above all others whom he desires to have settle up his affairs; and his removal pro tanto revokes the will. A probate court is not justified in thwarting the intention of a testator in such a case, unless there is a legal necessity therefor; and where the court has taken so decided a step, its records should show that such necessity existed. The rights of creditors, heirs, or legatees must be shown to have been imperiled by the continuance of the executor in the office in order to justify the action of the court in removing him. If the decision of the county court in this *174case, removing tbe appellant as such executor, had been based upon the ground that he had failed and refused to file the inventory, there would have been less objections to it, but there is nothing in the case showing upon what particular grounds it was based. The court found that the appellant, as such executor, had “ been unfaithful io and neglectful of his trust, to the prohable loss of the petitioners, ” as alleged or charged in their petition. In what particular, however, he had been unfaithful or negligent, does not appear. There are several charges of unfaithfulness and neglect in the discharge of his duty set out in the petition, some of which are disproved by the evidence, and others are frivolous upon their face, but which of them the court sustained can only be conjectured.
We may regard the charge in the petition of neglect on the part of the appellant to file the inventory as the most serious one against him which is contained therein; but we do not know how the court found upon that charge. Its finding and decision may have been upon some other charge therein which this court would deem entirely insufficient. Where a charge of dereliction of official duty is made, which specifies several distinct grounds, the court which tries it, if it does not find all the specifications true, should state which ones of them it sustained. Some of the specifications contained in the petition, if admitted to be true, would not support the decision of the county court; notably, the one in which the appellant is charged with having neglected to borrow a sufficient sum of money upon his individual credit and that of the estate, by pledging his property and the property of the estate as security for its repayment with which to redeem the shares of stock sold under the decree of the United States court. Besides, it is not claimed from the evidence that he could have been able to borrow any money without pledging his own effects and paying a bonus, at one time of §25,000, and at another of §50,000. To have paid any such bonus out of the estate of the testator to procure a loan of money would have been a broach of the appellant’s official duty; and yet, so *175far as the court can know, it may have been upon that identical charge that the county court made its finding that he had “been unfaithful to and neglectful of his trust, to the probable loss of the petitioners.” It is not, in my opinion, exacting too much of a court that tries a party upon a charge of violating an official trust he has sworn to faithfully perform, to require it, before pronouncing the party guilty of the charge, and declaring his office forfeited in consequence thereof, to set forth the facts found, and conclusions of law drawn therefrom. The judgment in such a case is an impeachment of the party’s integrity; and it would be highly unjust to him, especially where the charge was made up of several distinct specifications, some of which could not be sustained under any proof, others accusing him of slight omissions, and others of corrupt designs, to adjudge him guilty generally, without distinction. Again, such a course is unfair to an appellate court, required to exercise revisory jurisdiction over such adjudications.
And I must also dissent from the view of my learned associate, that the county courts are invested with very large discretionary powers over the conduct of executors and administrators, and its exercise will not be interfered with on appeal, unless plainly required by some principle of law. County courts are vested with probate jurisdiction; but the mode of exercising it is specifically pointed out by statute, the provisions of which must control their action. Section 1094 of the Civil Code provides that any heir, etc., may apply for the removal of an executor or administrator who has become of unsound mind, or been convicted of a misdemeanor involving moral turpitude, or who has in any way been .unfaithful to or neglected his trust, to the probable loss of the applicant. Such application shall be by petition, and upon notice to the executor or administrator, and, if the court find the charge to be true, it shall make an order removing such .executor or administrator, and revoke his letters. The county court has no- discretion in the matter. The charge is made by. *176a party interested in the estate, and it must consist of one of the three things enumerated in the section. The executor or administrator must either have become of unsound mind, been convicted of a misdemeanor involving moral turpitude, or been unfaithful to or neglected his trust, to the probable loss of the applicant, or have become a non-resident of the State, as provided in section 1095, Code of Civil Procedure, before the court can exercise the power of removal. What acts or omissions on the part of the executor or administrator constitute such unfaithfulness or neglect of the trust are not specified in the statute, further than that they must be such as will be liable to result to the probable loss to the heir, legatee, devisee, creditor, or other person interested in the estate, who applies for removal.
I have examined the evidence in support of the several charges made against the conduct of the appellant as executor of the estate of his brother BenHolladay, and am not satisfied that it is sufficient to establish the ground of removal above referred to, which is the only one prescribed in the statute that is applicable to the case. It is probably true that the appellant was somewhat dilatory in filing the inventory of the estate. He had not, however, been wholly passive in the affair. He had prepared an inventory, and submitted it to the appraisers, but they had not appraised it, nor could he compel them to do so. Perhaps he should have had other appraisers appointed to perform that duty; though the condition the estate was in at the time—it being all in the hands of receivers appointed by the circuit court —was at least some excuse for the delay. Conceding, however, that the appellant was neglectful in that particular, how can the respondents claim to have been injured by it? It is not pretended that the property has depreciated in value. On the contrary, it is admitted that its value has enhanced far in excess of the amount of interest accrued on the debts. It is not shown, and does not appear, that one cent’s worth of the estate has been lost or wasted on account of any official neglect of the applicant. The *177respondents may have been anxious to have the estate settled, but that is no ground for removing the appellant from his executorship. The business could have been expedited without resorting to any such extreme measure. The county court has power to control and direct the conduct ■of such officials. I am apprehensive that, if executors and administrators were allowed to be removed for slight cause, it might often encourage a class of persons to undertake to procure their removal in order to enable themselves to carry out some selfish purpose. The desire to rob the estate of a dead man seems to be very prevalent, and it can be accomplished more effectually when the executor or administrator is of a pliant, yielding disposition, than where he is obstinate and persistent. Experience has proved that the more popular and agreeable members of community do not always make as faithful officials as those who are less affable, and more inclined to be rude in their intercourse with mankind. “Ugly honest persons,” as they are styled, are very apt to be unswerving in their adherence to the dictates of duty, and exact in its performance; and it would be humiliating and unjust if such persons were to be removed from the admmistration of an estate because they were obnoxious to those who were devising schemes to make profit out of it. I fear that if this decision is affirmed it will establish a bad precedent, and open a door to fraud and dishonesty. I am opposed to its affirmance, under any circumstances, until I know the particular grounds upon which it was rendered. I am in favor at least of sending the case back, with directions to the county court to state explicitly its findings of fact and conclusions of law upon which its decision was based. I am aware that the statute does not require county courts to pursue such a course in probate matters, but I believe, nevertheless, that the practice of doing so, in a case like the one under consideration, would be a wholesome practice to adopt.
Application for rehearing denied, December 16, 1889