18 Mills Surr. 392 | N.Y. Sur. Ct. | 1917
Some of the persons interested in the estate of the decedent ask for a determination by this court refusing letters testamentary upon her last will and testament, to the executor therein named.
The will of the decedent was contested and after a jury trial of certain controverted questions of fact was admitted to probate. The respondent is entitled to letters testamentary thereunder, unless for some reason prescribed by statute he is incompetent to receive the same. Section 2564 of the Code of Civil Procedure specifies the persons who are incompetent to receive letters. The section, so far as material to this controversy, provides as'follows: “Ho person is competent to serve as an executor, administrator, testamentary trocee or guardian, who is: "" * * 5. Incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding.”
The petition upon which the application is based states as
An examination of the papers discloses the fact that the interlocutory judgment referred to was made upon the consent of the respondent. He explains his failure to file the account by stating that the incompetent died before the date upon which he was to file it and that the proceeding brought by the committee of the incompetent thereby abated. It cannot be questioned that the power of the committee to proceed with the action ceased upon the death of the testatrix. (Code Civ. Pro., § 2344; Matter of Forkel, 8 App. Div. 397; Carter v. Beckwith, 128 N. Y. 312, 320.)
In the memorandum submitted by the petitioners they also urge as a ground for refusing letters that the respondent being the attorney of the decedent intermingled her funds with his own and that this constitutes such an act of dishonesty as to disqualify him from receiving letters and ask that a hearing be accorded so that they may offer evidence on this point. I am of the opinion that even if this ‘fact were proved it would not of itself constitute dishonesty as used in the section cited. Such being the case, it is not necessary to have a hearing on that proposition.
At first glance it would appear perhaps that there is something anomalous in having as the executor of this estate the person who was the defendant in the action brought by the committee. As was argued by the counsel for the petitioners,
The will having been admitted to probate, the person therein nominated as executor has a right to have letters issued to him. This right he should not be deprived of unless it clearly appears that he is incompetent under the Code sections cited above, or that the facts stated in section 2565 exist and the surrogate exercises his discretion adversely to him. (McGregor v. McGregor, 1 Keyes, 133.) It is no trivial matter to refuse letters testamentary to a person duly nominated in a valid last will and testament. (Matter of Latham, 145 App. Div. 849, 854.) In this case it would involve a finding that the respondent is dishonest. Nothing in the papers before me warrants such a finding; nor would I be willing to base it upon absolute
It follows that the application must be denied, and letters issued accordingly. No costs.
Decreed accordingly.