150 N.Y.S. 509 | N.Y. App. Div. | 1914
This appeal is from a decree of the surrogate of Kings county that settles an account of executors. The executors as appointors were to divide the residuary estate “not equally but according to their discretion and judgment as to their respective needs ” of certain charities and certain of the legatees. And again the testator wrote: “It is my Will that the amount to each be fixed by my Executors as before said, and they may also abate one or more from the above list.”
The objectors and appellants are two of the charities named by the testator and the recipient of moneys, respectively, under the execution of the power. There is no question raised as to the legality of the exercise of the power, but challenge is made to the exercise of the discretion as unfair and unreasonable, and there is also a charge of bad faith made by one of the said objectors.
Very rarely, if ever, does the court interfere with the honest exercise of their discretion by appointors. The court will not
Although the testator expressed the thought that he had made proper specific provision for his widow, yet he contemplated that further provision might be necessary, for he not only nominated her in his will as one of the possible appointees, but he expressly wrote, in the letter referred to in his will, that if necessary she should be “well provided for from my residual estate. ” The inventory of the estate was in round numbers $159,000. The realty, consisting of the homestead, was valued at $10,000. The appointors increased some of the annuities of the legatees, applied $15,000 to some of the various charities in different amounts, and transferred the balance of the residuary estate, in round numbers $79,000, to the widow absolutely. Thus, in addition to the homestead, the widow has in all about $100,000 (exclusive of her own estate of
There is no fault found with the said sum required for her maintenance, but the criticism is that it was unnecessary to make over to her absolutely the balance of the residuary estate. I agree with the learned surrogate that there is force in this criticism. But as he found that this payment was a proper and reasonable exercise of discretion, made in good faith and in accord with the direction and wishes of the testator, he did not disturb the appointment.
I think that there is not proof sufficient in the scheme itself to warrant a conclusion of bad faith against these appointors. There is no proof of the needs of the charities, which are praiseworthy and well established, in comparison with those of the widow.
But it is contended that there were benefits secured to the appointors which afford sufficient evidence to upset this disposition of the residuary estate. One of these appointors is the committee of the estate of the incompetent. It is argued that as this action of the appointors increases that estate, the committee will receive more compensation. But we must assume that the court appointed the proper committee in consideration of all the circumstances. He must have given security, he is controlled by the court and his compensation is determined by it. (Code Civ. Proc. §§ 2337, 2338, 2339.) It appears that the widow while competent made a will; that these executors are executors under that will, and that all this was known to them before they acted in appointment. It is argued that the larger the estate of the widow, the larger will be the commissions, and that her estate, thus increased, will afford full corn missions to them both, But it must Ije
We must not overlook the fact that this committee and these executors were well known to the testator and apparently had his entire confidence, as is shown by his will and his writings. One was his attorney at law, who had charge of his investments and who is to be continued, and the other was an inmate of his home, and his secretary who had charge of his affairs, and who is to be continued also. It was not at all strange that one should have been selected as the committee by the court, or that both should be chosen as executors by the testator and by the widow also. I think that the circumstances are not sufficient to disturb the decree, which is affirmed, but without costs of this appeal.
Burr, Thomas, Rich and Putnam, JJ., concurred.
Decree of the Surrogate’s Court of Kings county affirmed, without costs of this appeal.