11 Paige Ch. 261 | New York Court of Chancery | 1844
The surrogate was clearly wrong, in requiring the executors to prove their responsibility, before it was proved or admitted that there was any estate or property in their hands to be administered, or any thing alleged or proved on the part of the applicant, to raise a doubt as to their responsibility. Where a person interested in the estate of the decedent, seeks to obtain security from the executors, to whom probate of the will has been granted, it is not sufficient for him, in his petition to the surrogate, to state generally, in the language of the revised statutes, that, according to his information and belief, the circumstances of the executors are so precarious as not to afford adequate security for the due administration of the estate. But the petition should state such particulars, as to the situation and value of the estate of the decedent and the pecuniary circumstances of the executors, as prima facie to render it probable that the estate of the testator will not be safe in their hands. And if the executors, upon the return of the citation, answer the petition and deny the allegations therein, upon oath, the applicant must give some proof to induce the surrogate to presume those allegations are true. Here the petition was defective in this respect. For it did not state, even upon information and belief, the amount or value of the real or personal estate which had come to the hands of the executors, or that any thing remained in their hands to be administered; or any thing as to the situation, nature, or amount of their property. Nor did the petitioner allege that she believed the executors, or either of them, to be insolvent or deeply involved in debt. Under such circumstances, and in the absence of any proof in relation to the value of the estate of the testator, or of a want of pecuniary responsibility in the executors, the surrogate should have dismissed the application.
But, if the petition had been properly drawn, the surrogate should have given the executors an opportunity to put in a sworn answer to the same. In that case the allegations in the petition which were not denied, might have been taken as true, without further proof; and those which were put in issue by the answer, would have been the proper subjects of investigation and proof
There is no pretence that either of the executors is insolvent, or is wasteful or extravagant; or is engaged in any speculation which will be likely to endanger the proceeds of the. real estate, of the testator, if they should sell such estate for the payment of debts, under the power contained in the will. The existence of such a power is stated in the petition, and is not denied by the executors, and, therefore, might be considered as admitted for the purposes of the application. It was admitted that all the personal estate had been properly administered, and that the executors had paid out a considerable amount of their own funds, in addition to the rents of the reafestate, towards tile debts. And if they sell the real estate, they will have in their hands the whole proceeds of that sale, in addition to the reputed property of both, which, in the aggregate, is more than $6000.' This amount of funds, in the hands of prudent and discreet men, as one, at least, of these executors is proved to be, affords all the security which can reasonably be required, that these executors will faithfully discharge their trust; by paying over to the creditors such part of the proceeds of the farm as they may be entitled to, when such farm shall have been sold.
The order of the surrogate, requiring the appellants to give security, must therefore be reversed. And the petition of the respondent must be dismissed with costs; including the costs of the executors on this appeal.
