245 A.D. 845 | N.Y. App. Div. | 1935
Although the question is not entirely free from doubt, especially in view of the nature of the estate, the court is in accord with the view of the learned surrogate that the will indicates an intent to create an equitable conversion of the residuary estate. However, the court cannot presently affirm the determination that Henry H. Nutt should be removed as executor and trustee. Representatives are removed, not to punish them, but to prevent waste. Failure of a trustee to pay an obligation to the estate is not, of itself, sufficient to require a removal. The handling of this estate was a family affair. The building of the golf course was an experiment encouraged by the testator in his lifetime. He had loaned money for that purpose to Henry H. Nutt, his son-in-law, in whom he seemed to have confidence. The widow and two daughters, beneficiaries to the extent of almost three-fourths of the estate, do not wish Nutt removed, and have forgiven his indebtedness to the estate as far as they are concerned. During the hearing, even the objector did not urge removal. It was first suggested by the surrogate. The first opinion of the surrogate did not direct the removal. It was not until a supplementary opinion was written that the removal was ordered, without a proceeding for that purpose. (Matter of De Beixedon, 262 N. Y. 168.) There are circumstances which indicate that Henry H. Nutt was not a person unfit to hold the office of executor and trustee. There does not seem to have been
