Dennis v. Hamilton

D.C. Circuit

Dennis v. Hamilton

48 App. D.C. 160, 1918 U.S. App. LEXIS 2371

CourtCourt of Appeals for the D.C. Circuit

DecidedNovember 4, 1918

DocketNo. 3149

StatusPublished

This text of 48 App. D.C. 160 (Dennis v. Hamilton) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dennis v. Hamilton, 48 App. D.C. 160, 1918 U.S. App. LEXIS 2371 (D.C. Cir. 1918).

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Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The sole question here presented is one of power in the probate court, over the objection of the surviving administrator, to appoint an administrator to fill a vacancy caused by the death of one of'two administrators. Neither of the present administrators are related by blood to the decedent, nor are any of the next of kin who are given preference in administration under the statute making objection to the present order. In this particular, the case differs from Williams v. Williams, 24 App. D. C. 214.

While it is true, as insisted by appellant, that a surviving administrator, succeeds to all the powers of the original coadministrator, this condition only continues so long as the surviv- or remains the sole administrator. It ceases with the appointment of a successor. The powers then become, as originally, joint and several.

We are not here concerned with the right of administration by those upon whom the right has been conferred by statute. As suggested, no one has here objected upon whom the statute bestows any right of administration, aside from the powers derived by the present litigants through the discretionary appointment of the probate court. The position of appellant is well described by the Iowa supreme court in Read v. Howe, 13 Iowa, 50, as follows: “What provision of the statute has been violated by this appointment has not been shown, nor in what the irregularity consists, except the alleged reason that she has no interest whatever in the estate. If that be true, still, from all we can discover in the record, she stands upon an equal footing with Mr. Howe. He claims no precedence as a preferred executor under the statute; and if he does not like the companionship of Mrs. Head in the administration, it is his privilege to throw up his commission and retire.”

It is doubtful if appellant has the right to maintain this action, since it is not clearly apparent that he has the status of an injured party. However, we have ignored this question, preferring to turn the case upon the broad ground of the power of [167]*167tbe probate court to make tbe present order in the exercise of its general supervisory power over the administration of estates in general, a power wdiich, in the absence of statutory limitation, will only be reviewed for abuse of discretion, a condition not present .in this case.

Tbe judgment is affirmed, with costs. Affirmed.

A motion for rehearing was denied November 23, 1918.

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Mr. Justice Van Orsdel

delivered the opinion of the Court:

The sole question here presented is one of power in the probate court, over the objection of the surviving administrator, to appoint an administrator to fill a vacancy caused by the death of one of'two administrators. Neither of the present administrators are related by blood to the decedent, nor are any of the next of kin who are given preference in administration under the statute making objection to the present order. In this particular, the case differs from Williams v. Williams, 24 App. D. C. 214.

While it is true, as insisted by appellant, that a surviving administrator, succeeds to all the powers of the original coadministrator, this condition only continues so long as the surviv- or remains the sole administrator. It ceases with the appointment of a successor. The powers then become, as originally, joint and several.

We are not here concerned with the right of administration by those upon whom the right has been conferred by statute. As suggested, no one has here objected upon whom the statute bestows any right of administration, aside from the powers derived by the present litigants through the discretionary appointment of the probate court. The position of appellant is well described by the Iowa supreme court in Read v. Howe, 13 Iowa, 50, as follows: “What provision of the statute has been violated by this appointment has not been shown, nor in what the irregularity consists, except the alleged reason that she has no interest whatever in the estate. If that be true, still, from all we can discover in the record, she stands upon an equal footing with Mr. Howe. He claims no precedence as a preferred executor under the statute; and if he does not like the companionship of Mrs. Head in the administration, it is his privilege to throw up his commission and retire.”

It is doubtful if appellant has the right to maintain this action, since it is not clearly apparent that he has the status of an injured party. However, we have ignored this question, preferring to turn the case upon the broad ground of the power of [167]*167tbe probate court to make tbe present order in the exercise of its general supervisory power over the administration of estates in general, a power wdiich, in the absence of statutory limitation, will only be reviewed for abuse of discretion, a condition not present .in this case.

Tbe judgment is affirmed, with costs. Affirmed.

A motion for rehearing was denied November 23, 1918.

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48 App. D.C. 160, 1918 U.S. App. LEXIS 2371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-hamilton-cadc-1918.

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