38 N.Y.S. 292 | N.Y. App. Div. | 1896
• All the beneficiaries under -the will of Mary J. Havemeyer, deceased, united in a petition to the surrogate asking that letters testamentary issued to J. Lee Humfreville be revoked, and that he be removed as executor and trustee under the last will and testament and codicils thereto of Mary J. Havemeyer, deceased. Annexed to -this petition is an affidavit by Edward Kent, who has been appointed as executor and testamentary trustee in the place of Agnes J. Burn-ham, a daughter of the testatrix, in which is set forth the condition of the estate as he found it upon being appointed such executor and trustee, and the proceedings' of the respondent, in which affidavit he states : “ In my opinion, the only way in which this estate, can be protected, the provisions of the will carried out, and the interests of the beneficiaries subserved, is by the prompt removal of Mr.. Humfreville as executor and trustee under the will of the deceased.”
In this case every one connected with the estate as beneficiary, together with the attorneys for those interested and his co-executor and co-trustee, unite in stating that the interests of the estate imperatively demand the removal of the respondent; and an examination of this record shows that the relation of the.respondent to his co-trustee and to the beneficiaries of the estate, is such that his continuance as trustee will involve the estate in much needless litigation, and considerable expense. It is quite true that this alone would not justify the removal of the trustee. But when this condition of hostility between those interested in an estate and its trustee exists, it becomes material to determine whether the feeling of hostility has been caused by an honest endeavor on the part of the trustee to carry out his trust and perform his duties, in opposing the wishes of the beneficiaries for an illegal and improper disposition of the trust funds, or whether it has been -caused by an attempt of the trustee' to manage the estate in a manner not authorized by law or by the will of the testator from whom he received his authority to act. If the latter appears, we think that the interests of those concerned in the estate require that the trustee should make way for one who will manage the estate according to the rules prescribed for the management of such estates and who will act in sympathy with the beneficiaries rather than in hostility to them.
The claim of the respondent that the hostility shown arises solely
In addition to the three express charges made against the respondent, which will be noticed hereafter, the papers show that the respondent has constantly violated the express provisions of the will. The will contained the following provision “ and directing them (the trustees) in all things to act jointly, keeping all bank accounts in their joint names, in which all moneys received from my estate • shall be deposited, and all disbursements made therefrom withdrawn by check, signed by both, and no investment, sale, lease or other change in my estate shall be made, except by the concurrence of both my executors and trustees for the time being.” That this provision was frequently violated by the respondent is conceded; accounts being opened in his own name, moneys invested by himself alone without the consent of his co-trustee, and changes made in the estate without her concurrence. The excuse offered by the respondent for this violation of the will, namely, that his co-executor and trustee refused to unite with him in the acts that he considered necessary for the protection of the estate might be a reason for removing one or both. trustees, but certainly is no excuse for a vio
The first is the withdrawal by the respondent from the Holland Trust Company of • the sum óf $Y,000 by a check to his own order on the 4th day .of Hovember, 1891. In considering this charge, it is proper to notice the apparent claim of the respondent that, as the petition alleges that he applied this money to his own use, that charge must be considered as in the nature of a criminal indictment and that it must be either proved in its entirety or not considered at all in determining whether or not the respondent is a proper person to remain trustee of the estate. This position is certainly a remarkable one to. be urged upon an application of this character. We are here considering the question as to whether or not the action of the trustee in relation to the administration of the trust confided to him is such as to require that he should be removed, not as to whether or not he has committed a crime, and the fact that the charge as made is somewhat broader than the proof would justify is certainly no reason for saying that the facts proved should not be considered in determining the question as to the propriety of the removal of the trustee. ' Hor is the charge at all answered by the fact that after these proceedings were commenced the amount that was illegally withdrawn was. returned by the ■ respondent to the estate. The question is whether he did in fact illegally withdraw a part of the property of the estate, and to that question there can be. but one answer.
By the respondent’s answer it appears that in the month of February, 1891, he received the proceeds of the sale, of Ho. 1Y5 Pearl street, and on that day, in violation of the express. terms of
The second specific charge against the respondent, of endeavoring to induce his co-executor to place in his hands the sum of $3,000, is an additional proof of his management of the estate in violation of the directions contained in the will for its management.
The third charge, admitted by the respondent to be true, is that
The investment of the money of the estate in the second mortgage bonds of the Ohio Southern Railroad Company was an investment entirely unauthorized by law and for which there is no possible excuse, and the relation of the respondent to that railroad, with his inability to say whether or not he himself sold the bonds to the estate, confirms the conclusion that he is not a proper person to be trustee of this estate.
A further discussion of the acts of this respondent, as executor and trustee, would serve no good purpose. It is sufficient to say that upon all the testimony, and giving to the respondent the full effect of his explanation of his acts, we are satisfied that he has repeatedly violated the rules as to the management of estates by executors arid trustees, by making improper investments of the property of the estate, by Adolating the express provisions of the will under which he was appointed, and by his general conduct towards the beneficiaries and those interested in the estate, entailing considerable loss upon the estate and making a proper execution of the trust difficult and expensive so long as he remains executor and trustee.
Under subdivision 2 of section 2685 of the Code of Civil Procedure the surrogate is authorized to revoke letters testamentary issued to an executor, “ where, by reason of his having Avasted or improperly applied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed 'to his charge; or by reason of other misconduct in the execution of his office, or dishonesty, drunkenness, improvidence or want of understanding, lie is unfit for the due execution of his office.” By section 2817 the surrogate is authorized to remove a testamentary trustee where, for the same reasons, it appears that he is unfit for the due execution of his trust. And we think, upon the undisputed facts appearing in this record, this respondent is shown to be - unfit for the due execution of his trust, either as executor or trustee, and that the application should have been granted.
Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.
Decree reversed and motion granted, with costs of appeal and motion to the appellant.