In re the Estate of Brayton

Memorandum by the Court. Upon the facts here presented it was an improvident exercise of discretion for the Surrogate to grant letters of administration with the will annexed to the committee of the life beneficiary. Such action placed one of the committee (Mildred E. Merriman) in a dual position that may result in serious conflict. Mrs. Merriman’s husband, Warren C. Merriman, and thp life beneficiary were executors of the will from 1935 to June 19, 1950 when the latter was removed by reason of her incompetency. There was no accounting, however, by Merriman and the committee of his coexecutor for the period from 1938 to 1950. In addition there was no accounting by Merriman from 1950 to the time of his death in 1960. Neither has Mrs. Merriman, as executor of her husband’s will accounted for his activities from 1938 to the present. Upon the hearing herein proof was offered that in 1938 Merriman, as executor, assigned certain mortgages owned by the estate to a third party and the following day the latter reassigned the mortgages to Merriman as an individual. Under the will the presently incompetent life beneficiary was given the right to invade the corpus of the estate. If need therefor arises and the right now exists it may be pursued by the committee. We conclude that the best interests of the estate and the exercise of a proper discretion require that letters testamentary with the will annexed issue to appellant, Abby L. Brayton Ruediger, and Herkimer County Trust Company, one of the committee of Jennie A. Brayton, the incompetent life beneficiary.