Freeman v. Kellogg

The Surrogate.—From a careful consideration of the papers submitted on this motion, and such as I have been able to give to the questions raised on- the executors’ accounting, I am not able to find that the executors [224] sought to be removed or required to give security, have become incompetent by law to serve, by reason either of ■dishonesty, improvidence, or want of understanding. Judge Comstock, in Emerson v. Bowers (14 N. Y., 449, at page 454) defines improvidence, as used by the statute in question (sub. 5, § 3, 3 R. S., 73 [6 ed.]), as follows: “ The term evidently refers to habits of mind and conduct which become a part of the man, and render him generally and under all ordinary circumstances unfit for the trust or employment in question.” Hence the motion must be determined as to whether the circumstances of the executors are so precarious as not to afford adequate security for their due administration of the estate (§ 19, 3 R. S., 75 [6 ed.]). Except as to the executor Freeman, who is a nonresident of the state, and who for that reason may be required to give security, it is conceded that the executors -are without pecuniary responsibility. But it is claimed, in their behalf, that their condition has not materially changed since their appointment, and that the.testator was aware of their impecurtious condition when he nominated them by his will, and that the guardian of the infant, who petitions for their removal, with a full knowledge of their condition, entered into an agreement with other of the beneficiaries by which the contest of the will was withdrawn, and it was probated; and that it was thereby provided that said executors should receive letters, and act as executors and trustees, pursuant to the terms of the said will, without security. But I am of the opinion that section 19, above referred to, when it authorizes the Surrogate to require security of an executor when it shall appear that his circum [225] stances are so precarious, &c., is not affected by the fact that the decedent knew of their pecuniary condition when he appointed them. I approve and follow the rule laid down by Chancellor Walworth, in Wood v. Wood (4 Paige, 299, at 303.) “It is not material to inquire whether the testator was aware of the want of responsibility in the executor, at the time of making the will. For if the testator has been so improvident as to commit the administration of his' estate to one whose circumstances are such as not to afford adequate security for the faithful discharge of his trust, the court must interfere for the protection of the estate against the effects of such improvidence.” In Holmes v. Cock (2 Barb. Ch., 426) it was held that the statute in question was applicable to a case of an executor who had not sufficient property, exclusive of the contingent interest of his wife in the proceeds of the real estate of the testator, to pay his debts. At page 428, the learned Chancellor, in speaking of an executor, authorized by the will to sell real estate, says: “He may then sell the farm without notice to any one, and being insolvent, there is no certainty that the proceeds will be safe in his hands.” These authorities do not seem to me to be overcome by the case of Shields v. Shields (60 Barb., 56). For, in the latter case, there is an obvious misinterpretation of the expression used in the 19th section, “ or that his circumstances are so precarious as not to afford adequate security,” &c., by ascribing to “circumstances” the personal traits of the executor rather than his pecuniary responsibility. I am therefore of the opinion that it is my duty to hold that the executors’ circumstances are not such as to [226] afford adequate security for the due administration of the estate, and that they should be required to give security. But as all the adult beneficiaries have, in my opinion, waived their right to demand security by the agreement referred to, no material change having occurred in their pecuniary condition since, they should not be required to give such security, except to cover the interests of the infants, whose guardian had no right to waive such security, and who may, in my opinion, petition for this relief, though the petitioning guardian signed the agreement individually. I cannot concur with the learned counsel for the petitioner, that it is incumbent upon the executors to show, affirmatively, that they have wisely and honestly administered the estate. When the petitioner alleges their dereliction, she is bound to prove it; and, in respect to the account rendered, it being duly verified and vouched, the onus is upon the objectors to falsify or surcharge. Ordered accordingly.