125 Misc. 386 | N.Y. Sur. Ct. | 1925
This is a proceeding brought to revoke the letters of three of the executors named in the will, and for their removal as executors and trustees of the estate. The petitioner is the widow of the deceased. She is herself an executrix and is one of the legatees and beneficiaries of the trust. An order of reference was made to take testimony and report with opinion on the issues raised by the answer to the petition. The referee has reported that the three respondents, Isidore Braveman, Reuben Dworkin and Max MatzMn, should be removed. After a careful examination of the testimony taken by him, the exhibits and the briefs of counsel, I am unable to agree with the conclusion reached by the referee and hold that confirmation of the report must be denied.
The power of the surrogate to revoke the letters of an executor or an administrator for misconduct has been greatly limited by the language of sections 99 and 101 of the Surrogate’s Court Act, and by the decisions of the appellate courts. (Matter of Jung, 205 App. Div. 37, 39; Matter of Appell, No. 1, 199 id. 574; Matter of Leland, 219 N. Y. 387; Matter of Doscher, 165 App. Div. 193; Matter of Latham, 145 id. 849.) The material subdivision of section 99 which applies to the issue here provides that letters of an executor may be revoked by decree of the surrogate:
“ 2. 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 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; he is unfit for the due execution of his office.”
Especially in the case of proceedings against executors the statutory grounds of misconduct must be established. As stated
As to the findings relating to the Ardsmore Estates, Inc., charges, I find no statutory ground of removal in the conduct of the respondents. There is no proof that they participated in any attempt to defraud the Shenk corporation or the estate. The testimony as to the alteration by the attorneys of the terms of the proposed compromise does not support the finding that there was any attempt on their part to favor the Ardsmore Estates, Inc., or its stockholders, to the prejudice of the estate beneficiaries. The negotiations for the settlement of the disputed claims between the two corporations were never completed and a foreclosure action was properly begun at the direction of all of the executors.
In Matter of Jung (supra) Mr. Justice Finch, in discussing the grounds for revocation of letters, said: “ Under the statutory provisions and the authorities, nothing less than mental or physical disability such as to render the appointee of the testator incapable of understanding or performing the duties of the trust, or dishonesty in money matters, from which it might be inferred that the estate would be put in jeopardy, is sufficient to justify his removal.” Again in Matter of Latham (supra) the word “ dishonesty ” as used
Submit decree on notice accordingly, which may contain the present prohibition restraining certain acts of the respondents.