133 N.Y.S. 1105 | N.Y. Sur. Ct. | 1911
In this proceeding, brought by three executors for the removal of the fourth, the petitioners insist that, if the surrogate shall find that the respondent’s conduct has been such as to bring her within the reprobation of either subdivision 1 or 2 of section 2685 of the Code of Civil Procedure, it is not within the discretion of the court to withhold its order of removal.
They cite section 2687 of the Code, as follows: “ * * *. If the objections [made in accordance with § 2685], or any
Their argument is that, where the context of the statute as to one class of allegations against the executor commands that the surrogate, upon proof, must revoke the letters, while as to another class he is expressly permitted to exercise a discretion, the provision that the order must be made is intensified by the contrast. This construction, however attractive, is forbidden by authority. Matter of Monroe, 142 N. Y. 484; Matter of O’Hara, 62 Hun, 531; Elias v. Schweyer, 13 App. Div. 336; Matter of Waterman, 112 id. 313; Matter of Thieriot, 117 id. 686, Matter of Burr, 118 id. 485.
These cases make it clear that, although a violation of duty or even breach of trust may be found upon the evidence, the letters should not be revoked if the fund or estate is in no danger of being lost. While some of these decisions do not apply to the duties and limitations of a surrogate under the section considered supra, others are directly in point, and they involve an interpretation of that section inconsistent with the petitioners’ claim.
The accused executrix is presumptively able to respond for any default. She has received from this estate alone more than a half million dollars, and there is no suggestion that she has dissipated it. Eighty per centum of this estate has been safely distributed. There is a pending proceeding for an accounting in which three of the executors have submitted their account and in which the respondent may be required to also account.
The application is denied, without costs.
Application denied, without costs.