And upon this construction we would have no difficulty in determining that the facts alleged, if true, render the applicant for letters an unsuitable person to discharge the duties of the trust which require him to collect all the debts and other assets of the estate, and preserve them for distribution according to the provisions of the will, since his interests are clearly adverse to the estate, and antagonistic to the legatees and devisees and others interested therein. The decisions of the courts of all those states the statutes of which vest the court with the power and discretion to determine who are suitable persons to serve as executors so hold, and the correctness of these decisions cannot be doubted. Winship v. Bass, 12 Mass. 199; Drake v. Green, 10 Allen (Mass.), [124], 126; Thayer v. Homer, 11 Metc. (Mass.) [104], 110; Kimball's Appeal, 45 Wis. 391; In re Gleason's Estate [ 17 Misc. 510], 41 N.Y.S. 418. But the several sections of the Code referred to were adopted at the same time, are in pari materia, and must be construed together; and the construction of one, if doubtful, may be aided by a consideration of the words of, and the legislative intent indicated by, the others, and of the evil of the common law intended to be remedied. And a consideration of all the sections and of the common law relating to the subject, which they were intended to modify, leads to a conclusion which is opposed to the construction placed by counsel on section 45. It is a rule of statutory construction that a statute in modification or derogation of the common law will not be presumed to alter it further than is expressly declared. The presumption is that the language and terms of the statute import the alteration or change it was designed to effect, and their operation will not be enlarged by construction or intendment. — Cook v. Meyer Bros., 73 Ala. [580], 583; Webb v. Mullins, 78 Ala.
"Upon the other hand, counsel for the appellants refer us to cases in which the courts have removed administrators or executors upon the ground that their interest conflicted with those of the estates they represented. Among the cases cited upon that subject are the following: In re Gleason's Estate, 17 Misc. 510, 41 N.Y.S. 418; Marks v. Coats, 37 Or. 609, 62 P. 488; Putney v. Fletcher, 148 Mass. 247, 19 N.E. 370; Mills v. Mills, 22 Or. 210, 29 P. 443; Kellberg's Appeal, 86 Pa. 129-133; In re Wallace, 68 App. Div. 649, 74 N.Y.S. 33. In Marks v. Coats, supra, the court in passing upon the question, says:
They have the right to demand that no person be appointed whose personal interests are so conflicting with and adverse to the interests of the estate that both such interests cannot fairly be represented by the same person. This rule in principle, though possibly not stated in the exact language here used, is to be found in the following cases: Re Elder, 160 Ore 111, 83 P.2d 477, 119 ALR 802; Corey v. Corey, 120 Minn. 304, 139 N.W. 509; Putney v. Fletcher, 148 Mass. 247, 19 N.E. 370; Thayer v. Homer, 11 Met 104; Anderson v. Bean, 272 Mass. 432, 172 N.E. 647, 72 ALR 959; Comstock v. Bowles, 295 Mass. 250, 3 N.E.2d 817; Farnsworth v. Hatch, 47 Utah 62, 151 P. 537; Heron's Estate, 6 Phil 87; Pickering v. Pendexter, 46 N.H. 69; In re Lininger's Estate, 230 Ia 201, 297 N.W. 310; In re McCluskey, 116 Me 212, 100 A 977; Justice v. Wilkins, 251 Ill 13, 95 N.E. 1025; In re Schmidt's Estate, 183 Pa 129, 38 A 464; In re Wallace, 74 NYS 33; In re Gleason's Estate, 41 NYS 418. Also see Woerner's, The American Law of Administration, 3rd ed sec. 235 and 33 CJS p. 950. The rule is recognized in our own cases.
The general rule is that a person is not rendered incompetent because he claims individually property which ostensibly belongs to the estate. 23 C. J. 1027; In re Dolenty's Estate, 53 Mont. 33, 161 P. 524; Farnsworth v. Hatch, 47 Utah, 62, 151 P. 537; Matter of Gleason, 17 Misc. 510, 41 N.Y. S. 418; Matter of Bennett's Will, 60 Misc. 28, 112 N.Y. S. 592; In re Leland's Will, 219 N.Y. 387, 114 N.E. 854, 856; Welsh, Driscoll Buck v. Buck, 64 Utah, 579, 232 P. 911; In re Flood's Will, 236 N.Y. 408, 140 N.E. 936. "Appointment is not to be refused merely because the testator's selection [the one designated by statute, section 5737, Code of Alabama] does not seem suitable to the judge.
Section 99 of the Surrogate's Court Act authorizes the removal of a testamentary trustee who has "improperly applied * * * assets in his hands" or been guilty of "other misconduct in the execution of his office." The meaning of the latter phrase is carefully reviewed in Matter of Gleason ( 17 Misc. 510, 524, 525), and seems clearly to cover the actions of the respondent trustee as disclosed in the petition. It is unquestionable that an estate fiduciary is responsible in the Surrogate's Court for a devastavit committed in his capacity as a corporate officer.
( Bowling Green Savings Bank v. Todd. 52 N.Y. 489, 493.) Misconduct by a trustee imports a breach of trust ( Matter of Gleason, 17 Misc. 510); by a student, behavior detrimental to the welfare of his college. ( Samson v. Trustees of Columbia University, 101 Misc. 146.)
The assertion and maintenance of control over an estate under these circumstances is said to be misconduct. Matter of West, 40 Hun, 291; affd., 111 N.Y. 687; Matter of Gleason, 17 Misc. Rep. 510; Matter of Wallace, 68 A.D. 649; Matter of Stallo, 82 Misc. 135; reversed on grounds not material to this discussion, 209 N.Y. 567. The petitioner may take a decree revoking the respondents' letters and directing them to render and settle their accounts.