In re the estate of Luckey

The Surrogate.—The only question to be considered in this caséis whether the discretionary terms of the will are such as to take the subject away from the consideration and determination of this court. But °for the discretionary clause, it is entirely clear, upon numerous authorities, that the amount agreed to be paid for the monument in question is at least three times as much as the representative of such an estate would be entitled to expend for the. purpose named. (Owens v. Bloomer, 6 N. Y. Weekly Digest, 330; Farrin v. Myrick, 41 N. Y., 315 ; Springsteen v. Samson, 32 Id., 714.) The circumstances of this case are somewhat peculiar. The executor is a legatee under the will, and his relations [98] with the decedent were friendly and intimate. The rights of creditors are not affected by the determination of the question submitted, and it only concerns the residuary legatee, who is a niece of the decedent. And yet, if it shall be held that the executor was authorized, under the terms of the will, to expend the sum named for a monument, he might have expended the whole of the residuary estate. I am not willing to approve the doctrine that a discretion conferred upon an executor by a will is to be exercised without regard to the rights of other legatees, or that it is an uncontrollable discretion. J am of the opinion that when a discretion is conferred .upon an executor or trustee, it should be held a discretion to be exercised according to law, and the principles .of justice. Such I understand to be the effect of King p. Talbot (40 N. Y., 78). In that case the trustees were .authorized and directed to make investments of the trust funds in their discretion, and having invested the funds in the .gto.ck of certain railroad, bank and canal company .companies, it was held to have been an improper exercise of the discretion, and that such discretion was only authorized in respect to the investment in such securities as were recognized as proper for trust funds, to wit, government or real estate securities. It seems to me, therefore, that in this case the discretion to be exercised by the executor should be limited to the amount adjudged proper by the well-adjudicated cases in this state,1 and that the terms of the will do not enlarge the power of the executor beyond that limit, otherwise very great injustice would be done to the parties interested, and a precedent established which would be a fruitful source of fraud. [99] I am of the opinion that considering the estate in question, and the circumstances of the case, that $700 is an exceedingly liberal allowance for the purposes named, and one which exceeds the limit in the case above stated, and that no greater amount than that should be allowed in this case. Ordered accordingly.