
    In the Matter of the Petition of Pauline S. Pearsall for Appointment of a Trustee Under the Will of Paul Spofford.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Appeal—Motion to revive.
    Where an order was made appointing a trustee and one of the parties interested appealed and soon after died, and three years elapsed before his executors moved to revive the appeal, and the proof of the service of the notice of appeal was slight and uncertain, Held, that the application to revive should be denied.
    (Brady, J., dissents.)
    Appeal by the executors of Eugene Douglas SpoSord from an order made at the special term August 20, 1890, denying their application for leave to revive an appeal alleged to have been taken from an order made more than three years before the date of this application appointing Thomas W. Pearsall a co-trustee of the estate of Paul SpoSord, deceased.
    
      Wm. Pierrepont Williams, for app’lt; Thos. G. Shearman, for resp’t.
   Brady, J. (dissenting)

On the 14th of February, 1887, Pauline S. Pearsall and Edward Clarence SpoSordj children and beneficiaries under the will of Paul SpoSord, deceased, asked by petition for the appointment of Thomas W. Pearsall as one of the trustees under the will of their deceased father, which had been admitted to probate in 1869, and under which there had been orignally four co-trustees, namely, the widow and her three sons, Paul EL. JosephL. and Gardiner'S. SpoSord. ■ The widow and Gardiner S. died prior to February, 1887, and there then remained only two trustees, of whom one was Paul N. SpoSord, who was insolvent and incapacitated by bodily infirmity from taking any active part in the management of the estate, and Joseph L. SpoSord, whose health was then seriously impaired and who was at the time about to take a trip to Europe designing to be away for a long time, and who did shortly afterward actually sail for that country and was absent when the motion was argued. The petition prayed for the appointment of Mr. Pearsall without requiring him to give security. To this all parties interested in the estate consented with the exception of Eugene D. SpoSord, whose sole objection was to the order requiring no security from Mr. Pearsall unless Eugene himself could be appointed a trustee. The other beneficiaries objected to the appointment of Eugene solely on the ground of his youth and his lack of business experience, he being then twenty-eight years -old and never having been in business of any kind except that of a nominal cleric to his brothers Paul and Joseph at a very small salary.

The learned justice at special term in a well considered opinion determined to appoint Mr. Pearsall alone as co-trustee, and inasmuch as it appeared that the trust property consisted almost exclusively of real estate he ordered and required Mr. Pearsall to give a bond to Eugene D. Spofford for $50,000 and ordered that all moneys coming into the hands of the trustees aggregating $5,000 should at once be deposited in the United States Trust Company to the credit of all the trustees and to be drawn out only upon their joint order. This order was entered May 4,1887, and served upon Messrs. Evarts, Choate & Beaman, attorneys for Eugene D. Spofford on the 10th of May, 1887.

On the 23d of August Eugene D. Spofford, who was the only person making serious objection to the selection of Mr. Pearsall as trustee, died, leaving a will.

Mr. Pearsall duly qualified as trustee, and filed his bond, to winch no objection appears to have been made.

Ho further steps were taken under this appeal for over three years, and until July 21, 1890, when the present executors of Eugene applied for leave to revive and continue it, and upon the allegation that they did not know until within a comparatively short time prior to their application that an appeal had been taken.

The application which results in this appeal was one to revive the appeal taken by Eugene D. Spofford from the appointment of Mr. Pearsall. An examination of the record presented for our consideration now indicates that the opposition to Mr. Pearsall was very slight, and it would seem to have been prompted rather by personal feeling than good judgment, and there are many reasons for believing that the appeal would be unsuccessful; but with that we have nothing to do.

The question is an abstract one, that is whether, the appeal having been taken, as it undoubtedly was, however imperfectly it may have been inaugurated, the executors should be permitted to revive it Section 1303 of the Code provides that when the appellant seasonably and in good faith serves the notice of appeal either upon the clerk or upon the adverse party, or his attorney, but omits through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, or stay the execution of the judgment or order appealed from, the court, in or to which the appeal is taken, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made upon such terms as j ustice requires.

The appeal having been initiated, however irregularly, under the section just quoted the court has the power, and it is one which is frequently exercised, of permitting the omission to be supplied. Here there is more than that to be done, it is true. The omission suggested is to be supplied, and also the order appealed from denying the application for leave to revive the appeal reversed in order to put the executors of Eugene rectus in curia.

The right of appeal is a sacred one, and should not be lightly treated even although in all probability it will be unsuccessful, and it is thought, therefore, that the petitioners should be allowed to revive the appeal, but without a stay of proceedings; so that the management of' the estate shall go on uninterruptedly without reference to the appeal itself. We think that should only be done, however, in consequence of the laches which marked the proceedings on the part of the executors, upon the payment of the costs of the motion, and ten dollars costs and the disbursements of this appeal

Daniels, J.

proof to establish the fact that an appeal had ever been taken from the order, or that the notice had been served on either of the opposing parties, is too indefinite and too uncertain to maintain, that as a matter of fact. In addition to that the long delay of the executors before their first endeavor was made to discover the fact was such as to require the denial of the motion to waive the appeal if one had ever been taken. The order on these grounds should be affirmed, with costs.

Van Brent, P. J., concurs.  