OjST APPLICATION POR A BEHEARING.
Taliaeerro, J.Unfaithfulness in the discharge of his functions authorizes the discharge of an administrator from his office.
Has the administrator in this case been unfaithful in the discharge of the duties of his office ?
He administered the separate estate of Simms. That consisted of certain personal property and the interest of Simms in the partnership with Irwin. With this share of Simms in the partnership the administrator of Simms’s separate estate had nothing to do until a partition took place and Simms’s portion of the estate was definitely ascertained. The liquidation of the partnership affairs and business belonged exclusively to the surviving partner; with its indebtedness the administrator *788was not concerned. It was.no part of his business to sell Simms’s interest'in the partnership to raise money to pay the partnership debts. His business was exclusively confined to the separate estate of Simms until after the partnership business was settled, and by partition that interest was ascertained and passed over to him. When therefore he petitioned the court for a sale pf all the personal property of Simms’s estate to pay the debts of Simms’s estate, which he alleged was necessary to do to-pay them, this declaration was not true. He proceeded to the sale therefore without grounds, and I call this unfaithfulness in his administration. He advertised the sale of Simms’s undivided share in the partnership in globo without regard to the interests of the estate, the manifest-purpose of which was to drive off small bidders and enable the surviving partner to put it at a low figure, and this I call unfaithfulness. When this interest in the partnership was adjudicated to Irwin under the cash sale, the administrator declined receiving a dollar, and turned the whole sum over to Irwin to go to pay partnership debts. He acted, in my opinion, unfaithfully toward the separate succession of Simms, noting by the way that he caused the property to be sold under the pretense that there were debts of his separate estate to pay, and when the property was sold he collected no money to pay them.
In joining himself with Irwin as a quasi co-administrator, to provide means to settle the partnership affairs, he was acting unfaithfully to the separate estate of Simms, to which he should have had an' eye single. His counsel says Insley had a right to administer the estate. A mere abstract, negative right he had. He was without the shadow of any equitable right. There was no reason why he should be appointed. He knew that the legal tutrix of the minor, sole heir of Simms, was entitled by law to the administration of the estate. He knew she was about to apply for it. He used vigilance, however, to push for and get the office before the old woman; ignorant and unaware of the maxim that the law favors the vigilant, could procure it. Such vigilance I am inclined to favor but little. Neither morals nor propriety of conduct sanction a man’s thrusting .himself into the business of an estate without the remotest personal right in himself, and uncalled for by any party having rights. This administrator has done this thing. If he had the legal right to do it, he has that right with bad grace, and has exercised it unfaithfully toward the estate he swore to be faithful to. When, therefore he asks this court to be continued' in office, because a removal would not redound to his credit, he should not be listened to. . The court should look to the interests of the minor child whose all is in possession of this unfaithful administrator, and not to what people might think of his removal. In worming himself into the office he took the risk of all the consequences, and he should abide by them.
*789There is pleaded in his behalf that he proceeded under legal advice. If he received bad advice, which has brought him into trouble, he must suffer for acting finder that advice, if, as it is fully proved he did, he acted illegally and unfaithfully. When it is pleaded in extenuation of his illegal acts that he acted through ignorance and not by design, I hold that a greater reason is shown for his removal. A man both unfaithful and too ignorant to perform the duties of the office should be superseded by One faithful and competent.
For these reasons, and several more that might be readily stated, I oppose granting a rehearing.