104 N.Y.S. 29 | N.Y. App. Div. | 1907
The decree appealed from -revokes the letters testamentary issued to George M. Burr, the executor named in the will of Henry A. Sheldon, deceased. It was made upon the petition of Mary E. Wiggins, who was one of the residuary legatees and next of kin of said deceased. The proceedings were instituted under section 2685 of the Code of Civil Procedure, providing for the revocation of ■letters and under subdivision 2 thereof, which provides that they may be revoked: “ Where, by reason of his having wasted or improperly applied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidentlv 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 ; he is unfit for the due execution of his office.”
The following section requires that “ a petition presented- as prescribed in the last section, must set-forth the facts and circumstances showing that the case is one of those therein specified.” A petition was presented in this case and an answer was interposed raising issues to be tried and denying all the charges of misconduct on the
The only charge of substance within the issues which was assigned by the surrogate as a reason for the removal was that 'the executor had invested moneys of the estate in securities unauthorized by law, but that charge is rendered of no serious importance by reason of the findings of the surrogate that no loss has accrued to the estate on. account of any investment made by the executor, and that he has never been compelled to foreclose any of the securities that he has taken for the estate. There was a further finding that the proceeding for the removal of the executor was not commenced until after the judicial settlement of his accounts and a distribution and division of the property made as provided by the decree upon such settlement. That decree recites that the executor has fully accounted for all the personal estate and personal property .of the estate of said deceased which has come into his hands as such executor, and his accounts were thereupon judicially settled and allowed as filed and adjusted. This settlement, although termed an intermediate accounting, was made after due service of a citation therefor upon the petitioner. She was, therefore, bound thereby, and it has removed from, the legitimate field of controversy many matters which appear to have been litigated in this proceeding. The reason of the surrogate for the removal seems to be that it was his duty to take into consideration all of the acts of the executor, whether before or after the decree of settlement, which in any way affected his conduct in the management of the estate. The authorities upon which he apparently relied, however, were cases which were not brought for the removal of the executors or trustees, but to charge them for losses by reason of unauthorized investments.
The power to remove an executor is given for the protection of estates, but that power should not be exercised when the purpose of the petitioner is clearly not to protect the. estate but to punish the executor. {Elias v. ScAweyer, 13 App. Div. 340 ; Matter of Monroe, 142 1ST. T. 491.)
That is the rule laid down by the elementary writers. In Perry on Trusts (5th ed. §216) it is said: “There must be a clear
.This rule is cited with approval in Matter of O'Hara (62 Hun, 534) and in Elias v. Schweyer (supra).
In Story’s'Equity Jurisprudence (13th cd. § 1289) it is said : “ It is not indeed every mistake or neglect of duty or inaccuracy of conduct of trustees which will induce Courts of Equity to adopt such a course {i. e., to remove trustees). But. the acts or omissions must he • such as to endanger the trust property or to show a want of honesty, or a want of a proper capacity to execute tlie duties, or a want of reasonable fidelity.” • So, also, in Matter of Monroe (142 ¡N". Y. 491), which was a proceeding to remove an administrator, the court says: “ This is a proceeding, not to punish the administrator, but to protect the estate, and it was invoked in this case under circumstances wholly unnecessary and unjustifiable. The court found that the administrator and his sureties were financially responsible and able to make good the estate if it suffered loss. The unimportant and vexatious questions litigated in this proceeding could have been disposed of on the accounting and the administrator charged in a filial decree for all losses he had caused the estate, if any such were proved.”
In the brief of respondent’s counsel he says, “ the petitioner did not attempt in this proceeding to remove the executor for any loss occasioned by his acts while acting as such, but was brought for the purpose of reviewing, his conduct as executor and determine whether or not he should continue in that office.” Here is a concession' which shows that the proceeding is entirely outside of the purposes • for which it may legitimately be commenced and prosecuted under the law to remove an, executor. The conduct of ■ the executor, so far as his accounts were concerned,. received judicial approval when his accounts were settled. .
It there appeared' that he had administered a personal estate received from the testator amounting to $183,068.83, and which
After receiving and receipting for her distributive share pursuant to the decree on the intermediate accounting, the petitioner commenced this proceeding to remove him from his trust. It appears that there remains of the estate in his"hands only $3,770 which, was in notes taken by the testator that had not been paid at that time and which amount is barely sufficient to pay the executors’ commissions and the expenses of a final accounting. He is a man of abundant means, according to the proofs, to render the estate entirely secure in his hands and lie has not been shown in any sense to be a person “ unfit for the due execution of his office.”
We think no just or legal cause for his removal was shown, and for the reasons stated that the decree appealed from should be reversed. ■ '
Counsel for the executor asks that there shall be refunded to him the costs and disbursements which he was ordered in the decree to
Á11 concurred.
Decree reversed on law and facts, with costs against the petitioner personally, and said George M. Burr reinstated as executor.