60 Barb. 56 | N.Y. Sup. Ct. | 1870
Letters testamentary may be, and should be, granted by the surrogate at any time after the will shall be proved, to the person or persons named in the will as executors, unless an affidavit is made and filed by the widow, .legatee, next of kin, or creditor of the
“ 1st. Incapable in law of making contracts, (except married women.) 2d. Under the age of twenty-one years. 3d. An alien, not being an inhabitant of this State. 4th. Who shall have been convicted of an infamous crime. 5th. Who, upon due proof, shall be adj udged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence, or want of under- . standing.” (2 R. S. 69, § 3.)
We are to assume, then, that none of these reasons, not even that of improvidence, existed against the defendant at the time of proving the will and the issuing of letters testamentary. If after such letters have been granted by the surrogate, such executor becomes incompetent by law, for any of the aforesaid reasons, or that the circumstances of such executor are so precarious as not to afford adequate security for the administration of the said estate, it is the duty of the surrogate to inquire into the complaint. (2 R. S. 72, § 18.)
This precarious condition of the executor is the basis
If such were the views of the surrogate in this ease, in the absence of all adjudication upon, or judicial construction of the meaning and intent of the term precarious, as employed in this statute, then his decision has a basis of good sense to support it. Statutes must have reasonable construction. A construction that would give to the term precarious, as used in this statute, the literal construction contended for, would be impracticable and mischievous. Webster illustrates the meaning of “ precarious” by a quotation from Eogers, who says: “ Temporal prosperity is precarious.” This applies to the case of every, trustee. With this illustration for a true definition of this term, the circumstances of every executor are precarious, and he can be removed for that reason. I think in every case, when such a complaint is made, it must depend upon its own peculiar features and circumstances; of which the surrogate .is the appropriate judge. It seems to me that the circumstances of an executor are precarious only, within the meaning and intent of the statute, when his conduct and character present such evidence of improvidence or recklessness in the management of the trust estate, or of his own, as in the opinion of prudent and discreet men, endangers its security. There is, it seems to me, no such evidence in this case; nor, in my opinion, is there any evidence that renders the circumstances of the defendant, as executrix, precarious within the meaning and intent of this statute. It was a remark of Lord Hardwicke, “that a trust is an office necessary in the concerns of life, between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, and it is an act of great kindness in any one to accept it. If there is no mala fides—nothing willful in the conduct of the trustee—the court should regard all his acts with a favorable eye.”
I have not found in the decision of the surrogate any error that demands the reversal of the judgment. It should be affirmed, with costs.
Judgment affirmed.
Miller, P. J., and Potter and Parker, Justices.]