80 A.D. 520 | N.Y. App. Div. | 1903
These two appeals were argued together. The first one is an appeal from a decree of the Surrogate’s Court of Kings county denying an application to revoke the letters testamentary issued by that court on the 19th day of March, 1883, on the last will and testament of Henry J. Brandt, deceased, to Herman Wischmann, the respondent, and the other is an appeal from a decree of the Surrogate’s Court of Kings county requiring the appellant, Herman Wischmann, to file a bond in the penal sum of $170,000, conditioned for the proper administration of the estate.
W e think under the circumstances there is no good reason for disturbing the decree of the learned surrogate in the first appeal; the evidence, which is carefully analyzed and reviewed by the court, is not sufficiently preponderating to warrant this court in holding that the surrogate erred in reaching the conclusion that the letters testamentary should not be revoked.
We are, likewise, convinced that the learned court has very properly exacted a bond for the faithful discharge of the duties which are devolved upon the appellant as executor under the last will and testament of Henry J. Brandt, deceased. It is not contended by the appellant that he will be put to any trouble or expense in connection with the filing of the bond, or that he will be materially injured by reason of the decree of the Surrogate’s Court, but we are asked to reverse the decree because the appellant supposes it to
While the Surrogate’s Court is a creature of the statutes and we find no direct authority for the decree, we think there is no doubt of the existence of the power to require a bond whenever the court having jurisdiction has reason to believe that the safety of the estate requires this protection. It is clear, under the provisions of sections 2636 and 2637 of the Code of Civil Procedure, that the surrogate is invested with a power to judicially determine whether letters testamentary should issue, and by the provisions of section 2638 of the Code of Civil Procedure it is provided that the executor named in the will may entitle himself to letters testamentary thereupon by giving a bond as prescribed by law, although an objection against him has been established to the satisfaction of the surrogate, where the objection is that his circumstances are such that they do not afford adequate security to the creditors or persons interested in the estate for the due administration of the estate. It has been judicially determined that the “ adequate security” and “ circumstances” mentioned in this section do not relate primarily or exclusively to the pecuniary responsibility of the executor, but to his moral qualifications ; that the question presented to the court is, is it safe to put this estate in the hands of the person named as executor ? — can he be trusted to administer it faithfully and honestly as directed by the will? (3 Bliss’ Code [5th ed.], 3556, and authorities cited in notes.) By subdivision 2 of section 2472 of the Code of Civil Procedure the surrogate is given jurisdiction to “ grant and revoke letters testamentary and letters of administration and to appoint a successor in place of a person whose letters have been revoked,” and by subdivision 3 he is authorized to “ direct
The decrees appealed from should be affirmed.
Goodrich, P. J., Hirschberg, Jerks and Hooker, JJ., concurred.
Orders affirmed, with costs.