205 A.D. 37 | N.Y. App. Div. | 1923
The testator by his last will and testament appointed the appellant, his son, and the respondent, the appellant’s stepmother, executor and executrix and trustees thereunder. Letters testamentary were issued to them on February 13, 1914, and they entered upon the discharge of their duties. On the 28th day of April, 1915, the executrix petitioned the Surrogate’s Court for the issuance of a citation for the removal of the appellant, which was issued.
The testator left an estate of the value of about $300,000, consisting principally of apartment houses and stores. He left three children, the appellant, a daughter, Eva Kennellie, and a daughter, Katharina C. Jung. By his will he gave $10,000 to his daughter Eva Kennellie, and $1,250 to each of her four children in trust, to be paid to them or the survivors of them, respectively, on attaining their majority. The remainder of his estate he gave in trust to his executor and executrix, as trustees, to collect the rents and pay the taxes and other charges and to make necessary and proper repairs to the buildings; and from the surplus to pay $1,500 per annum to the widow, the respondent, for life or while
The grounds upon which the petitioner asked that the appellant be removed were that he had wasted and improperly applied income, and had improvidently managed the property, had been guilty of misappropriations, was lacking in understanding of his duties, and generally unfit for the office.
A referee was appointed to take evidence and report on the application for the removal of the appellant. Said referee reported that the evidence was insufficient to show that the retention of the appellant as executor and trustee would jeopardize any of the funds of the estate; and that while thére was evidence of infirmity of temper on the part of the appellant, there was no evidence of dishonesty; and that if there had been any irregularities in the management of the estate, these would show upon an accounting, which was the proper remedy; and recommended that the application be denied. The executrix filed exceptions to the report. These the surrogate sustained, revoked the appellant’s letters, and removed him as executor and trustee.
An examination of the record fails to disclose any evidence sufficient to sustain a finding of fact showing grounds for the removal of the appellant. The appellant had, prior to the death of the testator, his father, co-operated with him in the management of the estate. He had been brought up by the testator to care for the estate in a very simple and frugal way, doing many repairs to the various properties himself, and continued to take care of the property in that way. The testator did the natural thing in appointing the appellant. He had the right to choose whom he wished to carry out his plan in regard to the disposition of his estate and his selection is not lightly to be disregarded. (Matter of Leland, 219 N. Y. 387.) Under the statutory provisions and the authorities, nothing less than mental or physical disability
It appears from the briefs of both parties that, since this proceeding was instituted, the appellant has satisfactorily accounted; but since this fact does not appear in the record, it has not been taken into consideration by the court.
It follows that the decree should be reversed and the petition dismissed, with costs to the appellant.
Dowling, Smith, Merrell and McAvoy, JJ., concur.
Decree reversed and petition dismissed, with costs to appellant.