
    In the Matter of the Application of David R. Hyde to be appointed Trustee under the Will of Abbie W. Russell, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 29, 1892.)
    
    Trustee—Testamentary—Appointment op.
    Where all the cestuis qui trust but one assent to the appointment of a certain person as testamentary trustee in place of one deceased, and it appears that the opposition of the objector is factious, there is no abuse of discretion in making the appointment and the decree will not be disturbed.
    Appeal from decree of surrogate appointing trustee.
    
      William H. Hamilton, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   Patterson, J.

—By the will of Abbie W. Russell, who died in October, 1886, which will was duly admitted to probate by the surrogate of the city of New York, two trusts were created, one in favor of her brother Nathaniel M. Hyde, and the other in favor of her sister Maty M. Becker. By the terms of the trust the trustee was not only entitled to use the income of the Nathaniel Hyde trust for his support, but authority was given to use the principal for the same purpose if necessary. On the death of Nathaniel Hyde the fund set apart for that trust was to be distributed among other parties; and after the death of Mary M. Becker the trust fund held for her. benefit was to be divided between Edward H. Becker andLibbie 0. Becker. Frederick Hyde, a brother of the testatrix, was appointed trustee of both trusts; and by the terms of the will, after the death of Frederick Hyde, one Jirah Hyde was to <|>e the trustee. Frederick Hyde died in 1891, and Jirah Hyde died previously to that date.

After the death of Frederick Hyde an application was made to the surrogate’s court in the city and county of New York, and David R. Hyde 'presented his petition to be appointed trustee for both trusts in the place and stead of Frederick Hyde for the purpose of executing and carrying out such trusts. All the cestuis que trust joined in the application, or rather assented to it, except Andrew B. Hyde, who opposed it, giving as his reasons the allegéd unfitness of the petitioner by reason of pecuniary embarrassment and peculiar beliefs, which it was asserted would influence his judgment and affect his capacity to administer the trusts faithfully and intelligently. Nathaniel M. Hyde at first also assented to the appointment of the petitioner, but subsequently withdrew that assent. After hearing the petitioner and the opposing party, the surrogate made the appointment; and from the order or decree of the surrogate so made this appeal is taken.

By the provisions of § 2818 of the Code of Civil Procedure, the surrogate had the right in his sound discretion to make the appointment of the pedtioner in place of the deceased trustee. We have held, in the Matter of Adler, 60 Hun, 481; 39 St. Rep., 462, that appeals from the surrogate’s court to the general term of the supreme court do not stand upon the same footing with reference to a review on the merits of orders resting in discretion as do similar appeals from the special term of the supreme court to the general term; except in certain cases, that where a matter is within the discretion of the surrogate, his action will be reviewed in this' court only to ascertain whether there has been an abuse of discretion or a violation of justice.

We have examined this record for the purpose of ascertaining whether or not anything is to be found therein which would establish that there had been such an abuse, or whether injustice has been done by the order complained of. We can find nothing of the kind, and are satisfied that the surrogate exorcised his power wisely and properly. The active opposition coming simply, as it does, from one person, was evidently considered by the surrogate to be merely factious, in the face of the strong testimonials which were presented as to the eminent fitness of the petitioner and the wishes of the other "parties interested.

These testimonials not only come from some of the persons interested in the trust, but the strongest commendation was made of the petitioner by Mr. Justice Mayham, one of the justices of this court, by the county judge of Schoharie county, by-a magistrate and justice of the peace in that county, who had known the petitioner for more than forty years, ahd'who testified to his having been a public officer in that county who faithfully discharged his duty for many years, and from attorneys of this court who were well acquainted with him. That the opposition was also without merit may well have been inferred by the surrogate from what appears in an affidavit of the petitioner, that the objector, Andrew B. Hyde, offered to the petitioner to withdraw his opposition if he would agree to the appointment of said Andrew B. Hyde as trustee for Nathaniel M. Hyde, and have the petitioner appointed trustee for Mary M. Becker alone.

Under these facts and circumstances, we see no reason for interfering with the decision of the surrogate, and- the order appealed from must be affirmed," with costs.

Van Brunt, P. J., and O’Brien, J., concur.  