Savage v. Gould

60 How. Pr. 234 | N.Y. Sup. Ct. | 1880

Boardman, J.

Edward Savage was removed by the surrogate of Albany county as executor and trustee under the will of John Gronld, deceased, because he was “ incompetent to discharge the duties of such office as executor, and such trust as trustee, by reason of improvidence and dishonesty in the administration of said trusts, office and estate.”

The mass of evidence and the conceded facts are conclusive against the said Savage. He is shown to be incompetent in that he has delegated to others the judgment and discretion which, by his acceptance of the trusts, was due from himself. He has allowed his law partner to manage the trust estate for his own benefit. He has taken second mortgages in violation of his duty as executor and trustee. He has taken inadequate security, when ordinary care, judgment and competency would have protected the estate. He has converted the best of securities to invest in the poorest bonds and mortgages.

These acts and others which might be recited, convict Savage of incompetency to administer upon such an estate or discharge such trust duties. The funds in his hands are wasting away through his negligence, carelessness and ignorance, or dishonesty and improvidence.

There is additional evidence which satisfied the surrogate of his dishonesty. He has used the trust funds to secure his own profit, and has sought, by means condemned by law, to secure a pecuniary benefit to himself. He has charged to borrowers a bonus or commission on sums loaned, and put the same, or a part thereof, into his own pocket. He has exposed the securities, taken, to the suspicion of usury; not to the benefit of the estate, but himself. The estate has been managed for his own benefit, and he has deliberately made a profit out of it, when the making of such profit or gain exposed the estate to the greatest risks of loss, some of which have already occurred, and many of which will in all propability ensue. His reckless improvidence, his incompetency, and his acts outside of the sanction of the law, have involved the estate in litigation and charged it with costs. Litigation and costs must almost inevitably ensue in may . other cases in the future.

This court is satisfied the charges for which Savage was removed by the surrogate are abundantly sustained by the evidence. The interests of the estate and of the cestui que trust demand his removal. A continuance of the conduct of Savage in the future, as in the past, could only result in remediless disaster to the estate and the beneficiaries. Entertaining these views, we concur upon the merits that Savage was justly removed from his ofiices as executor and trustee.

It is urged, however, upon this appeal that the surrogate had no jurisdiction to remove Savage from his position as testamentary trustee for dishonesty. It is conceded that the surrogate could remove him for incompetency.

We have already shown that he was incompetent, in our opinion, to exercise these trusts. That incompetency is not shown in one or two isolated instances, as in Emerson agt. Bowers (14 N. Y., 449), but by a long series of reckless, improvident and foolish acts to the serious danger and detriment of the estate. We might safely stop here, and upon this ground alone sustain the surrogate’s decision.

But it seems quite clear, also,. that the learned surrogate was correct in considering the evidence of dishonesty and including that in the reasons for his removal.

As the law existed in 1871, the surrogate could have removed an executor when “ he had become incompetent to serve.” At that time (1871) power was given him to remove testamentary trustees “ in the same manner as now provided ” for the removal of executors (1 laws of 1871, ¿p. 1010). By chapter 79 of Laws of 1873, page 159, the Revised Statutes were amended so as to include dishonesty in the cases for which an executor might be removed from office. The amendment of 1873 did not affect the manner in which an executor could be removed. That remained the same as. before. It added another cause for removal, and therefore the Revised' Statutes included such cause for removal, which was equally applicable to executors, testamentary trustees or guardians. The amendment modified the statute as of a date prior to 1871, so that the power to remove testamentary guardians under the act of 1871 could be exercised in case of-incompetency by reason of drunkenness, dishonesty, improvidence or want of understanding. The authority to remove is only found in the act of 1871, but the cases in which the power might be exercised were within the province of legislative amendment. An amendment of the Revised Statutes, under such circumstances, causes the act of 1871 to take effect in virtue of the amended law, and be controlled by it as so amended. Such seems to us to be the purpose of the two statutes and the natural object of the legislature (Dawson agt. Horan, 5 Barb., 459).

It is not necessary to consider the exceptions taken upon the hearing. There is no substantial conflict in the evidence. The inferences from it are irresistible. There can be no two opinions as to the facts established. Whether they constitute evidence of incompetency by reason of dishonesty or improvidence may, perhaps, be debatable, though we do not hesitate in our own opinion in that respect. Hence these rulings now complained of could not, by possibility, have changed the result or lead to the establishment of facts at variance with those concededly established by the case.

We think the decree of the surrogate is just, and should be affirmed, with costs against Edward Savage personally (Same agt. Same, No. 132 on calendar.)

This case presents the same identical questions upon the removal of Savage as guardian, and upon the same evidence.

The decree in this case is also affirmed, with costs against Edward Savage personally.