114 Misc. 455 | N.Y. Sur. Ct. | 1921
This is an application made by the special guardians of Frederick W. Burnham, the incompetent son and only heir of the testatrix, the incompetent joining in the request, for the appointment of a temporary administrator under section 2596 of the Code of Civil Procedure. A special guardian is more than an attorney. He is a trustee ad litem. He must err, if neCtl be, on the side of caution. In bringing on a contest, and attempting to conserve assets, he is answerable to the court, as well as to the incompetent. In the instant case the special guardians have only performed a proper duty. The order in this matter would be intermediate in the proceeding now pending to probate the will. Matter of Shonts, 229 N. Y. 374. The application herein is directed to the discretion of the court, the exercise of which is founded upon any cause making for delay in the granting of letters, or in probating the will. The estate consists of bonds and mortgages, and other securities, also certain real estate stated to be worth $150,000. Care and control of the real estate and collection of income is required.
A temporary administrator represents the court as conservator to collect and conserve the assets of an estate. He is named with authority to act under the court’s direction. Matter of Hanford, 113 Misc. Rep. 639; Code Civ. Pro. §§ 2596, 2597.
I have withheld decision for a reasonable time to ascertain if the contest could be tried at the present jury term, and I now ascertain it will not be tried. The next jury term of the court will be held in May and the trial may be prolonged until the autumn. Matter of Wolfe, 181 App. Div. 35. Consequently, a temporary administrator should now be placed in charge of the estate to serve as custodian pendente lite. Someone with authority should have control of
As to the appointment of a suitable person to serve as temporary administrator. Section 2596 of the Code authorizes the surrogate, in his discretion, to issue to one or more persons letters of testamentary administration. The class of persons from whom the surrogate may make his selection of a temporary administrator is here clearly pointed out. Any one qualified to act as an executor may be appointed by the surrogate in the exercise of his judicial discretion. He is not otherwise limited in his selection. Whether the surrogate should appoint as the temporary administrator one who is named as executor in a disputed will, or some other person, must be decided in each case that presents itself on its own particular facts and circumstances.
It has been my policy to appoint the executors nominated in the will as the custodians of estates, unless there is some peculiar cause or necessity to look elsewhere. In Matter of Plath, 56 Hun, 223, Justice Willard Bartlett said: “ It is important that the person entrusted with temporary administration should be nót only competent and honest, but disinterested, and if he had to be either a relative, or a creditor of the deceased, it might often be very difficult to select a temporary administrator who would be indifferent as between the parties to a contest among
In the instant case the only heir at law is an incompetent son of the age of about forty-four years. He is an epileptic. The special guardians representing him make no request for the appointment of a particular person as temporary administrator. The proponents, the two executors nominated in the will, Herman A. Schupp, of Westchester county, and Victor H. Thun, of New York county, join in asking for the appointment of Mr. Thun. The contestant has refused to consent; in fact, objects to his appointment. The examination of the witnesses to the will, had preliminary to the filing of the contest, disclosed the fact that Mr. Schupp, one of the executors named, had consulted with the testatrix, and had prepared and attended upon the execution of the will as her attorney. The contestant who alleges lack of testamentary capacity and undue influence, objects to Mr. Thun’s appointment, because of his close association with Mr. Schupp in the administration of the estate of William D. Burnham, deceased, the father of the incompetent contestant herein, and for the further reason that he is named as co-executor with Mr. Schupp in the disputed will. The estimated value of the estate of the father, William D. Burnham, exceeds $500,000. The major part of this estate was bequeathed to charity. The father’s will bequeathed to the son only such portion of the income upon $15,000 as the trustees thereof, being Mr. Schupp and Mr. Thun, should, in the exercise of their discretion, think proper to use for his “ comfort, support and maintenance.” The corpus of the trust, that is the $15,000, and all unused income passes to the library and reading room of the village of Port Chester, as ultimate legatee. The trustees state that such income is about $900 per
Surrogates’ Courts have refused to appoint an executor as temporary administrator when it was alleged that such executor was unfriendly, or had assisted in shaping the testamentary disposition of the decedent, or was a party to the litigation; or was, from circumstances, not disinterested. Jones v. Hamersley, 2 Dem. 286; Cornwall v. Cornwall, 1 id. 1; Howard v. Dougherty, 3 Redf. 535; Matter of Plath, supra. In Matter of Wanninger, 3 N. Y. Supp. 137, Surrogate Ransom refused to appoint an executor a temporary administrator because he was charged with unduly influencing the decedent in making the will. In Crandall v. Shaw, 2 Redf. 100, it was held to be improper to appoint a person who was a party to the litigation, although he was not personally interested in the result, and that none but a disinterested party should be named. This ruling has been followed in Matter of Stearn, 9 N. Y. Supp. 445; Matter of Eddy, 10 Misc. Rep. 211.
It cannot be truly said that Mr. Thun is disinterested. He is a party to the contest proceeding. He is now acting with Mr. Sehupp as one of the executors of and trustees under the will of the father of the
As I observe, Mr. Thun is in the same position as Mr. Schupp finds himself. They both seek to propound a will that disinherits an only child, who is incompetent. They are both placed in a position of hostility to him. One of them as attorney attended the execution of the paper writing, and both are executors of the father’s will. It is fair to assume that they work in harmony and that Mr. Thun as a temporary administrator would be guided and counseled by Mr. Schupp. In fact, Mr. Schupp is the attorney of record for himself and Mr. Thun as such executors in all proceedings relating to the father’s estate. Mr. Thun’s administration of the estate as temporary administrator pending the contest could not be impartial. He could not well serve two conflicting interests.
To my mind, these facts and circumstances afford sufficient reason why he should not be appointed as temporary administrator against the protest of the contestant. Such temporary collector represents the interests of the legatees, if the will shall be admitted to probate. In a case of rejection, he represents the •heir at law. An estate should not be turned over to an expectant contestant to conserve during pending litigation (Matter of Shonts, 229 N. Y. 374, 382); nor
The power of the court to choose as temporary administrator one not ‘1 interested ’ ’ for such an ad interim office, “ rather than to give to either competitor the advantage of possession of the assets,” has been recently upheld in Matter of Durban, 175 App. Div. 688; affd., 220 N. Y. 589.
In view of the facts narrated here, as disclosed by the papers, in argument, and upon the law of the cases cited, I am constrained to believe that it would be an unwise and unwarranted use of my judicial discretion to choose Mr. Thun, even though he is a prominent and responsible man in the business world.
It was stated by the proponents in argument that the appointment of one other than Mr. Thun would cause the payment of an extra commission. That is true. If the proponents wish to moralize upon economy, permit me to say that fairness and justice are far greater virtues. It is, in my judgment, better to pay an extra commission than to work a possible hardship upon, and create a disadvantage for a disinherited child, by the court’s appointment of one to control assets, who is not disinterested, and who would be in a position hostile to the heir. Why should the proponents be given the advantage, at the outset, of possession of the assets? Justice Putnam, of our Appellate Division, in Matter .of Durham, supra, has disposed of that question by saying it should not be done. In proponents’ desire for economy, they have lost sight of the fact that, in the contest, the incompetent son cannot be awarded counsel fees (Forster v. Kane, 1 Dem. 67), nor payment for the production of alienists. Contestants are not assisted by the law. The law rather frowns upon attempts to break wills.
I will appoint Henry B. Barrett, a disinterested and suitable person, an attorney and counselor at law in Westchester county, as temporary administrator to take possession of all of the assets of the estate, upon his taking the statutory oath of office, and filing a bond equal to the amount of the personal estate.
Decreed accordingly.