250 A.D. 809 | N.Y. App. Div. | 1937
This is an appeal from an order of the Surrogate’s Court of Schenectady county denying a motion made by the appellant to punish the executrix for contempt of court and an order to show cause why she should not be removed as executrix. The appellant contends that the Surrogate’s Court of Schenectady county ordered that 497 shares of stock should be offered for sale at public auction. The surrogate in his decision says that no such order was made. The surrogate ordered the attorney for the executrix to submit a final accounting, including the stock in question and holds that the manner of sale of the stock was a question for the executrix and in case, upon proof, of her failure to sell the stock in a proper manner and at a proper price, she could be surcharged in her final accounting for the loss which is suffered by the estate. We believe that this is a correct statement of the law and that the Surrogate’s Court Act gave to the executrix discretion as to the manner in which she should sell the stock, but in ease of unfairness on her part she would be liable to have her account, upon proof, surcharged upon her final accounting. The affidavit in support of the order to show cause alleged the attorneys for the executrix agreed, with the attorney for the appellant that the attorneys for the executrix would give the attorneys for the appellant notice of sale. These allegations are uncontradieted in the record. This decision is not to be construed as approval by this court as to the maimer in which the sale was conducted, there being no denial that the attorneys for the executrix agreed with the plaintiff’s attorney that the sale should be at public auction with notice of the time and place so that they might have an opportunity to bid. Order unanimously affirmed, with ten dollars costs and disbursements, payable out of the estate. Present —■ Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ.