4 Redf. 218 | N.Y. Sur. Ct. | 1880
The Surrogate.—From a careful consideration of the papers submitted on this motion, and such as I have been able to give to the questions raised on- the executors’ accounting, I am not able to find that the executors
Except as to the executor Freeman, who is a nonresident of the state, and who for that reason may be required to give security, it is conceded that the executors -are without pecuniary responsibility. But it is claimed, in their behalf, that their condition has not materially changed since their appointment, and that the.testator was aware of their impecurtious condition when he nominated them by his will, and that the guardian of the infant, who petitions for their removal, with a full knowledge of their condition, entered into an agreement with other of the beneficiaries by which the contest of the will was withdrawn, and it was probated; and that it was thereby provided that said executors should receive letters, and act as executors and trustees, pursuant to the terms of the said will, without security. But I am of the opinion that section 19, above referred to, when it authorizes the Surrogate to require security of an executor when it shall appear that his circum
I am therefore of the opinion that it is my duty to hold that the executors’ circumstances are not such as to
I cannot concur with the learned counsel for the petitioner, that it is incumbent upon the executors to show, affirmatively, that they have wisely and honestly administered the estate. When the petitioner alleges their dereliction, she is bound to prove it; and, in respect to the account rendered, it being duly verified and vouched, the onus is upon the objectors to falsify or surcharge.
Ordered accordingly.