175 A.D. 58 | N.Y. App. Div. | 1916
The objections to the qualification of the executor were filed in the Surrogate’s Court by the appellants pursuant to the provisions of section 2566 of the Code of Civil Procedure, which authorize any person interested in the estate, among other things, to file objectionsat any time before letters testamentary are issued, setting forth specifically one or more legal objections to granting the letters to one or more of the persons about to receive the same; and further provides that where such objections are filed the surrogate must stay the granting of letters until the matter is disposed of. The objection to the qualification of the executor, which is presented by these appeals, is that he was incompetent to execute the duties of the trust by reason of want of understanding, and it was evidently filed pursuant to the provisions of section 2564 of the Code of Civil Procedure, which provides, among other things, as follows: “No person is competent to serve as an executor, administrator, testamentary trustee or guardian, who is:
The will was executed on the 23d day of April, 1914, and the testator died on March 28, 1916. He named three executors, one of whom predeceased him, and another renounced without qualifying, leaving the respondent Cheesman the sole executor. The testator left an estate of upwards of $5,000,000 in value, consisting of stock and bonds and other personal property and real estate, and three speculative accounts with stockbrokers, in which he had a credit balance in the aggregate of nearly $200,000, and he had pledged with the brokers securities of the aggregate value of more than $1,000,000. His real estate consisted of a large apartment house, an extensive factory, an interest in a private school, farm lands, and three villas in Italy. He was a stockholder in a real estate company, of which he was president, and owned two valuable yachts, which were chartered by the English Government for war purposes. He was president of the New York County National Bank, and owned the stock control therein, and the presidency has remained vacant since his death. He also owned the stock control in the West Side Bank. The value of his stock in these two banks was approximately $3,000,000. The will of the testator created a trust which the appellants claim was invalid, and if so they would be entitled to the entire estate after the payment of the expenses of administration and some small cash legacies; but in any event they or the infant children of some of them are entitled thereto.
The appellants contend that the testator could not have foreseen the conditions as they now exist, and that but a single executor would be able to, or attempt to qualify, and that he would be in the impaired state of health which the evidence shows him to have been in at the time of the hearing on the objections; and that the respondent by reason of physical infirmity and impairment of his mental faculties is incompetent to discharge the duties of this trust for want of understanding.
The respondent is sixty-three years of age. He was a physician, but gave up the practice of his profession about fifteen years ago. The evidence shows that he had, in the language
For the respondent, his family physician was called. His testimony does not materially controvert that given by the experts called by the appellants, and he admitted that the respondent’s “powers of protracted mental work” have been lessened, and that as a rule the mind of a person suffering from cerebral bulbar paralysis is affected. An expert called by the respondent, who had not seen the respondent since he suffered the strokes of paralysis, testified that paralysis of the motor centers controlling the arms and legs does not necessarily affect the intellectual area of the brain, and that while it was not common for persons who have suffered from two severe strokes of paralysis to become practically normal again as far as their mental conditions were concerned, he claimed that he had known of such cases, and that such cases had occurred.
It is quite plain from the phraseology of the provisions of said section 2564 of the Code of Civil Procedure that the incom
It follows that the objections should be sustained and the application of the respondent for letters testamentary denied. The order is, therefore, reversed, with ten dollars costs and dis
Clarke, P. J., McLaughlin, Dowling and Page, JJ., concurred.
Order reversed, with ten dollars costs and disbursements to each set of appellants payable out of the estate, and proceeding remitted to Surrogate’s Court.