
    In the Matter of the Judicial Settlement of the Account of Frederick A. Southworth and Silas Snow, as Executors, etc., of William Ludden, Deceased. Brooklyn Young Men's Christian Association and Others, Appellants; Frederick A. Southworth and Another, as Executors, etc., Respondents.
    
      (Supreme Court, App. Div., Second Department,
    
    
      December 11, 1914.)
    Executors and Administrators—When Court Will not Interfere with Exercise of Discretion by Appointors—Bad Faith—Evidence.
    Executors, as appointors, were directed to divide the testator’s residuary estate “ not equally but according to their discretion and judgment as to the respective needs ” of certain charities, and certain of the legatees. The testator also provided “ It is my Will that the amount to each be fixed by my Executors as before said, and they may also abate one or more from the above list.” Some of the beneficiaries under the execution of the power challenged the exercise of their discretion by the appointors as unfair and unreasonable, and one alleged bad faith.
    Evidence examined, and held, insufficient to warrant a finding of bad faith against the executors, and that a decree settling their accounts should be affirmed.
    The court will rarely interfere with the honest exercise of their discretion by appointors.
    Appeal by the Brooklyn Young Men’s Christian Association and; others, legatees, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court ou the 7th day of August, 1914, as overrules the appellants’ objections to the exercise of the power of distribution given to the executors under the 10th clause of the last will and testament of William Ludden, deceased, and approves of payment made or proposed to be made of the whole of the residue of the estate.
    Edward P. Lyon, for the appellant Brooklyn Young Men’s Christian Association.
    
      William Gr. Cooke [Howard 0. Wood with him on the brief], for the appellants The Young Women’s Christian Association of Brooklyn and the Brooklyn Bureau of Charities.
    Alfred Gr. Reeves [William R. Brinekerhoff with him on the brief], for the executors, respondents.
    Thomas H. Troy, special guardian for the respondent Mary J. Ludden.
   Jenks, P. J.

This appeal is from a decree of the surrogate of Kings county that settles an account of executors. The executors as appointors were to divide the residuary estate “ not equally 'but according to their discretion and judgment as to their respective needs ” of certain charities and certain of the legatees. And again the testator wrote: It is my Will that the amount to each be fixed by my Executors as before said, and they may also abate one or more from the above list.”

The objectors and appellants are two of the charities named by the testator and1 the recipient of moneys, respectively, under the execution of the power. There is no question raised as to the legality of the exercise of the power, but challenge is made to the exercise of the discretion as unfair and unreasonable, and there is also a charge of bad faith made by one of the said objectors.

Very rarely, if ever, does the court interfere with the honest exercise of their discretion by appointors. The court will not upset or disturb what they have done because it concludes that they did not execute their power as wisely or as well as could be. The court may be convinced that within the general scheme of benefaction a different method of distribution or different proportions of distribution would have met as well the need or desertsi of one, and accordingly could have met better the need or deserts of another, and yet the court cannot, therefore, undo what has been done. It can look into what has been done to ascertain whether, in the' execution of the power, the appointors were guilty of bad faith or intentionally did not exercise their best judgment, but acted from improper or ulterior motives. For in that ease the appointors fell short of the confidence of the testator, and the court will right the betrayal. That the appointors have gained a benefit merely incidental, is not enough to cause the court to act. The court should be convinced that but for the benefit gained the appointors would not have done as they did. The authorities for these propositions follow: Markey v. Langley (92 U. S. 154, citing Olcott v. Bynum, 17 Wall. 63) ; Banning v. Gunn (4 Dem. 337, 341); McLean v. McLean (62 N. Y. 627, affg. 3 Hun, 395) ; Roosevelt v. Roosevelt (64 N. Y. 651, affg. substantially on opinion below; S. C., 6 Hun, 43) ; Pom. Eq. Juris. [3d ed.], §§ 960, 1002; Chapl. Express Trusts & Powers, 469, 470; 2 Sugden Powers, 129; Matter of Huish’s Charity (L. R. 10 Eq. Cas. 5, 9). (See, too, Farwell Powers, 330.)

Although the testator expressed the thought that he had made proper specific provision for his widow, yet he contemplated that further provision might be necessary, for he not only nominated her in his will as one of the possible appointees, but he expressly wrote, in the letter referred to .in his will, that if necessary she should be “well provided1 for from my residual estate.” The inventory of the estate was in round numbers $159,000. The'realty, consisting of the homestead, was valued at $10,000. The appointors increased some of the annuities of the legatees, applied $15,000 to some of the various charities in different amounts, and transferred the balance of the residuary estate, in round numbers $79,000, to the widow absolutely.- Thus, in addition to the homestead, the widow has in all about $100,000- (exclusive of her own estate of about $10,000), instead of the homestead and $20,000, as specifically provided in the earlier part of the will. But since the death of the testator the widow, now 82 years old, has been adjudged an incompetent. The proof shows, and the surrogate has found, that exclusive of clothing, amusements, traveling expenses and a probable expense of an additional nurse at $30 a week, the keep of this aged lady requires $5,000 a year. There is no proof to indicate that the testator foresaw or apprehended that his widow would become insane, and hence his forecast of her probable need did not so contemplate her.

There is no fault found with the said sum required for her maintenance, but the criticism is that it was unnecessary to make over to her absolutely the balance of the residuary estate. I agree with the learned surrogate that there is force in this criticism. But as he found that this payment was a proper and reasonable exercise of discretion, made in good faith and in accord with the direction and wishes of the testator, he did not disturb the appointment.

I think that there is not proof sufficient in the scheme itself to warrant a conclusion of bad faith against these appointors. There is no proof of the needs of the charities, which are praiseworthy and well established, in comparison with those of the widow.

But it is contended that there were benefits seemed to the appointors which afford sufficient evidence to upset this disposition of the residuary estate. One of these appointors is the committee of the estate of the incompetent. It is argued that as this action of the appointors increases that estate, the committee will receive more compensation. But we must assume that the court appointed the proper committee in consideration of all the circumstances. He must have given security, he is controlled 'by the court and his compensation is determined by it. (Code Civ. Proc., §§ 2337, 2338, 2339.) It appears that the widow while competent made a will; that these executors are executors under that will, and that all this was known to them before they acted in appointment. It is argued that the larger the estate of the widow, the larger will be the commissions, and that her estate, thus increased, will afford, full commissions to them both. But it must be remembered that the allowances, both to committee and to executors, rest upon the theory of compensation, that they are not gratuities.

We must not overlook the fact that this committee and these executors were well known to the testator and apparently had his entire confidence, as is shown by his will and his writings. One was his attorney at law, who had charge of his investments and who is to be continued, and the other was an inmate of his home, and his secretary who had charge of his affairs, and who is to be continued also. It was not at all strange that one should have been selected as the committee by the court, or that both should be chosen as executors by the testator and by the. widow also. I think that the circumstances are not sufficient to disturb the decree, which is affirmed, 'but without costs of this appeal.

Burr, Thomas, Rich and Putnam, JJ., concurred.

Decree of the Surrogate’s Court of Kings county affirmed, without costs of this appeal.  