
    
      In re Stearn’s Estate.
    
      (Surrogate’s Court, Allegany County.
    
    March 14, 1890.)
    Executors and Administrators—Temporary Administrators.
    The executor named in a will is not the proper person to appoint as temporary administrator during a contest of the will, when be is the largest beneficiary under the will, is the main proponent, is charged by the contestants with having influenced the testator, has large unsettled transactions with the estate, and his relations with certain members of testator’s family are unfriendly.
    Application for the appointment of a temporary administrator, during the pendency of a contest of the will of John Stearns.
    
      Hamilton Ward, for proponents. Dolson & Orcutt, for contestants. L. C. Van Fleet, special guardian.
   Norton, S.

The will, the subject of this contest, gives to a son, the executor named therein, the principal part of the estate of the decedent, charging him with the maintenance of the widow, the payment to her of a small annuity, and the payment of some inconsiderable legacies to the other heirs of the decedent. All the parties interested, except the executor and the widow, are contesting the probate of the will, and all concede the necessity of the appointment of a temporary administrator; the proponents urging the appointment of the executor, while all the contestants object, and urge that some disinterested man should be named. The contest has developed considerable'bitterness, and the position of the contending parties towards each other is that of extreme hostility; but no evidence of any incompetency or unfitness, aside from the hostile position of the parties, has been given, so we are led to an examination of the authorities bearing on this question. In the case of Crandall v. Shaw, 2 Redf. Sur. 100, it was held to be improper to appoint a person who was a party to the litigation, although he was not personally interested in the result, and that none but a disinterested person should be named. The same had been held in a prior case, (Mootrie v. Hunt, 4 Bradf. Sur. 173,) and the former case followed the holding of the latter. In the case of Howard v. Dougherty, 3 Redf. Sur. 535, it was held that an executor of an estate should not be appointed, where he has any hostile interest. The court says: “A collector and receiver represents the interests of the respective legatees, if the will shall be admitted to probate; but, in case of rejection, he represents the heirs and next of kin, and should not be appointed, when it is apparent that, in respect to the probate of the will, he is in hostility to any party he must thus represent, except upon the consent of the respective parties, or for some very special reason rendering him indispensable in the proper administration of the estate. ” The case of Cornwell v. Cornwell, 1 Dem. Sur. 1, was decided on the authority of the case last cited; the court there saying that he had several times held in accordance therewith, and holding that the appointment of an executor charged with unduly influencing the testator should not be made. The holding of the courts seems to have been uniform in refusing to appoint an executor pending a contest in which he is largely interested, and where he is in a hostile position to, and his appointment is opposed by, the contestants. An examination of the later cases show that they do not differ from this view. In the ease of Jones v. Hamersley, 2 Dem. Sur. 286, the executor was not personally interested in the estate, and his appointment was opposed on the sole ground that he was named as executor, and the court in that case said: “Where an application for the appointment of one named as an executor has been opposed on account of his unfriendly relations with contestants, or of his alleged undue influence in shaping the testamentary dispositions of the decedent, or for some like cause, such application has often been denied.” But where the only ground of opposition is the fact that he will be entitled to letters testamentary if the paper in dispute shall be established as a will, he should be appointed. That case does not seem to change, but reaffirms, the rule. The case of Haas v. Childs, 4 Dem. Sur. 137, was where the widow applied for temporary letters, and only one person objected, and his interest was small, and he the only contestant of the will. Considerations of economy induced the court to grant letters to her. The Case of Bankard, 19 Wkly. Dig. 452, does not vary the rule, but holds that there is no arbitrary principle or provision of law preventing the appointment of a person named as executor in a will over which there is a contest. There seem to be no cases reported where, under the circumstances of the matter before us, the executor has been appointed the temporary administrator. He is the largest beneficiary under the provisions of the will, is the main proponent, is charged by the contestants with having influenced the decedent, and also that he has now large unsettled transactions with the estate, and the relations existing between him and the other members of the family are of a very unfriendly character. It is true the widow is in sympathy with him in this matter, but this dues not overcome the settled rule, particularly as the portion to which she would be entitled should the will not be established will be greater than the amount provided for her therein. So, in any event, she must be as well provided for. Following the long-established precedents, I am constrained to come to the conclusion that, under the circumstances, the appointment of the executor named in the will would not be proper; and for the same reason the widow should not be appointed. The parties to the contest may agree upon some person-to receive the appointment, and, if they are unable so to do, the court will appoint. A bond in the sum of $20,000 will be required.  