Howard v. Dougherty

The Surrogate. It is quite clear to my mind that Mr. Howard represents interests hostile to those of the present estate, to some extent at least. By chapter 71 of the Laws of 1864, section 10, the act of 1837, chapter 460, section 23, was so amended as to give the executor named in the will a prior right to be appointed collector; but by the act of 1867, chapter 782, section 7, the provisions which gave such preference in the act of 1864 were repealed: It is not quite clear why this repeal was made, but presumably because it was supposed that an executor who propounded a will would be in such a position of hostility to the contestant of the will as to render it probable that, in the administration of the estate, pending the contest, he would, be in hostility to the next-of-kin so contesting, and would, therefore, not be so impartial as to justify his custody of the estate during such litigation; and to my mind this affords sufficient reason why an executor, under these circumstances, should not ordinarily be appointed, against the protest of contestants. [538] A collector and receiver represents the interests of the respective legatees, if the will shall be admitted to probate; but in case of rejection, he represents the heirs and next-of-kin, and should not be appointed, when it is apparent that, in respect to the probate of the will, he is in hostility to any party he must thus represent, except upon the consent of the respective parties, or for some very special reason rendering him indispensable in the proper administration of the estate. The collector should give the usual security in the penalty of $100,000. Ordered accordingly.