
    GRISSINGER’S APPEAL.
    An heir has a right to apply for the removal of an administrator for cause, even though it he alleged in reply that the estate is insolvent.
    Refusal to prosecute a claim of the estate or to allow the heirs to intervene is ground for removing an administrator.
    Insolvency of the administrator is ground for removal.
    Appeal from the Orphans’ Court of,Berks County. No. 298, January Term, 1884.
    This was an appeal from a decree of the Orphans’ Court, dismissing John B. Grissinger from the office of Administrator of Joseph Henry, dec’d. The facts of the case appear in the opinion of the Court,, which was as follows, per
    Schwartz, J.
    This matter is before us on petition, answers and testimony. A large portion of the testimony is of a documentary character. Much of this testimony is irrelevant to the issues in question in this case.
    The material allegations set forth in the petition are as follows, viz:
    1. That the petitioner is the widow of the decedent.
    2. That on the 9th of April, 1876, John B. Grissinger was 'appointed administrator d. b. n. of Joseph Henry’s estate.
    3. That said Grissinger was, at the time of such appoint* ment, largely, notoriously and hopelessly insolvent, and is sc>' still.
    4. That he is wasting and mismanaging and in many ways jeopardizing the interests of the estate.
    5. That he was appointed at the instance of Daniel Miller, who is pressing a number of false and fraudulent claims against the estate.
    6. That the administrator is in collusion with Miller to have his false and fraudulent claims paid out of the estate, and that Miller and Grissinger have the same counsel.
    
      To these averments the administrator made answer on Oct* tober27, 1879:
    1. By giving a history of the affairs and management of th& estate from the time of the decedent’s death to the time when the present citations were issued.
    2. That as the estate is insolvent, the widow and heirs cannot, and do not, have any pecuniary interest in the estate, and hence have no status to demand the removal of the administrator.
    3. That whatever may be the financial condition of the respondent, so long as the creditors, who are the only parti es interested, are satisfied, the Court has no authority to remove, him.
    4. That no allegation is made by the petitioner against the-sufficiency of the administrator’s sur eties, nor that the sureties-make complaint of the financial condition of the administrator, or of his faithful administration of the estate; the attempt on-the part of the petitioner to have him removed is without authority of law.
    5. The respondent further avers as follows:
    Ás to the allegations which have been so industriously-woven into the averments of the petition respecting his infidelity as administrator of other estates, the respondent deems it unnecessary to reply, except so far as to say that they are to a large extent false and wholly irrelevant.
    “In reference to the allegation of collusion between this de- - ponent and the counsel for Daniel Miller, he declares it as un- - qualifiedly false and intentionally malicious.” .
    An examination of the petition, answer and the testimony, in so far as it is deemed relevant by the Court, shows the ma~:terial questions to be considered by the Court are as follows:
    1. Has the petitioner a status to ask for the removal of the-admin :stra tor ?
    The petitioner insists that he has, and that the questions of"' insolvency cannot be inquired into in this proceeding. He-further siys that the estate is not insolvent, and exhibits a.. statement from which it appears that the estate is solvent. But whether solvent or insolvent, he says, can make no difference as to his right to the removal of the administrator; in support of this position he cites: Bushong’s Estate, 11, Weekly Notes of Cases, 107, and the Act of 17 April, 1869, P. Laws, 70.
    Also, Edward’s Estate, 5, Weekly Notes of Cases, 431. I hold this to be the law.
    2. Pías the administrator wasted or mismanaged the estate, or is the estate likely to be jeopardized by his continuance in office ?
    It appears from the evidence and records of the Court of Common Pleas of Berks County that Benneville M. Henry, the first administrator of the estate, brought a suit against Daniel Miller to recover from Miller upon a number of checks and due bills held by the estate, as also the sum of $5,425, with interest, alleged to have been paid by Joseph Henry, the intestate, to William H. Clymer, for the use and at the instance of Daniel Miller, on the 13th of April, 1867. The declaration filed is in the sum of $20,000. In May, 1882, a proposition was made to the present administrator, John B. Grissinger, by the petitioner and heir of Joseph Henry, deceased, that they (the petitioner and heir) be permitted to prosecute said suit against Miller upon giving Grissinger, the administrator, a bond in such sum as he should require, with such sureties as the Court should approve, the condition of the bond to be that the petitioner and heir prosecute the suit for sole benefit of the estate, and indemnify the administrator against all costs to be incurred by the further prosecution of the suit. The administrator refused to accept this proposition, or to prosecute the suit himself. It appears from the testimony of Mr. Richards, who acted as counsel for the administrator in some manner, that he, Richards, advised the administrator to prosecute the suit after this proposition had been made; that Gris-inger consulted with Mr. Green, who was counsel for Miller, and then refused to prosecute the suit.
    That Mr. Richards thereupon withdrew as counsel for the administrator, and has not since acted for him in any capacity, because, as he says, he was not permitted by the administrator to do in respect to this suit what he deemed right and proper in respect to the interests of the estate.
    An administrator or trustee is he’d to the same diligence and care which a man of ordinary prudence exercises in the management of his own affairs.
    To say that an administrator who refuses to prosecute apparently valid claims of the estate, because the counsel of the debtor to the estate advises him that it is improper to do so, is taking that care of the interests of the estate which a man of ordinary prudence would in his own affairs, is a monstrous proposition. If the claim of the estate against Miller is a good and valid claim, the widow and heir have a right to have it tried and collected by the administrator. If there is nothing in the claim, as is alleged by Mr. Green, counsel for the debtor, that will be demonstrated on the trial.
    It also appears the alleged debtor and his son, George W. Miller, are the sureties for the present administrator; that the funds of the estate are in the hands of the counsel of Daniel Miller. It likewise appears that the administrator takes counsel with the attorney of Miller in reference to the matters of the estate instead of consulting his own counsel.
    Under all circumstances of this case, we think it proper to pursue the course indicated by the Act of May 1, 1861, P. Laws, 680, which provides that if for any reason the interests of an estate are likely to be jeopardized by the continuance in office of an administrator, he may be removed by the Court. It is accordingly considered and decreed that the letters of administration d. b. n., issued to John B. Grissinger, be, and the same are hereby vacated, and that new letters of administration d. b. n. be and are hereby awarded to Solomon Close, to be granted to the said Solomon Close by the Register of Wills upon his filing a bond in the sum of twenty-one thousand dollars, with sureties to be approved by the Court.
    Grissinger then appealed to the Supreme Court.
    
      N. C. Q. Reber and D. and J. N. Ermentrout, Esqs., for appellant,
    argued that to remove an Administrator a case must be clearly made out from the evidence; Parson’s Appeal, 82 Pa., 467; Hilles’ Estate, 9 W. N. C., 421. The discretionary power of the Court must be exercised equitably and justly; Rex vs. Wilkes, 4 Burr, 2539; Platt vs. Munroe, 24 Barb, 291.
    
      D. E. Schroeder and J. F. Smith, Esqs., contra,
    
    argued that the Orphans’ Court in its discretion can remove an Administrator; Act of May 1, 1861, P. Laws, 680; Dayton’s Estate, 1 Kulp, 118. The Supreme Court will not review the exercise of this discretion, except in cases of clear and manifest error; Haslage’s Appeal, 37 Pa., 440; Robinson’s Appeal, 11 Pa., 414. Nor will the Supreme Court disturb a finding of facts, except for grave mistake; Piper’s Appeal, 20 Pa., 70. Insolvency or impending insolvency is ground for removing an Administrator; Edwards’ Estate, 5 W. N. C., 431; Silverman’s Estate, 14 W. N. C., 259; Cornpropst’s Appeal, 33 Pa., 537. So also is the refusal to prosecute the claim against Daniel Miller; Kellberg’s Appeal, 86 Pa., 129; Kettler’s Estate, 14 W. N. C., 76.
   The Supreme Court affirmed the decree of the Orphans5' Court on March 16, 1885, in the following opinion:

Per Curiam.

The facts found by the learned judge clearly justify the décree. We cannot say the finding is without evidence. Where the interests of an administrator are in conflict with his duties as such, he should give way to one not so situated. AVe see nothing in this case to induce us to conclude that the judicial discretion of the Court was not exercised wisely and for the best interests of the estate.

Decree affirmed and appeal dismissed at the costs of the appellant.  