
    Matter of the Application of William O. Patterson, Mary Isabella Halbach and George Patterson for the Removal of Stephen G. Patterson as an Executor of and Trustee under the Last Will and Testament of Mary A. Patterson, Deceased.
    (Surrogate’s Court, Kings Comity,
    June, 1903.)
    Administration—Removal of executor for misconduct.
    The surrogate removed an executor for misconduct upon proof that he presented to one Harkness, his coexecutor, a voucher, purporting to be from one Tuttle for legal services he had rendered the decedent but for which Tuttle had never made any claim, that the executor also procured from Harkness a check drawn upon estate funds to the order of Tuttle for the face of the voucher, that the executor by a pretense subsequently got the check from Harkness after it had been paid to Tuttle and returned to Harkness, and that after having obtained possession of it the executor never returned it to Harkness or accounted for its disappearance.
    Application to remove an executor.
    Decker, Allen & Chatfield, for petitioners.
    T. C. Campbell, for Stephen G. Patterson.
   Church, S.

A motion is made to remove an executor herein, on the ground of his misconduct in connection with the payment of a certain pretended claim against the estate of the deceased.

It appears that one Tuttle, an attorney, rendered certain services for the deceased in her lifetime, but that upon her death he had made no attempt to present any claim against her estate, nor had he in any manner, way or shape, made any request of the executors to pay him any money for services rendered to the deceased. It appears that the executor whom it is sought to remove, Stephen Gr. Patterson, presented to his coexecutor what purported to be a voucher on behalf of said Tuttle, for his services, and that he thereupon procured from his coexecutor a check in payment of such services ; it also appears that shortly after the check had, through the course of the mails, come back to the coexecutor; that the executor who is sought to be removed, in company with his attorney, obtained from his coexecutor Harkness the various checks for the purpose of using them as vouchers, and that these checks he subsequently returned to the executor Harkness, except that specific check which was drawn to the order of Tuttle.

These facts of themselves are very suspicious; that an executor should have been willing to present to a coexecutor a claim against the decedent’s estate which had never been made, and get a check to pay the same, is not conduct which an executor endeavoring, in good faith, to administer the affairs of the estate, should adopt. When we have, out of all the checks which were presented, this particular check missing, it certainly tends to increase the suspicion. But the answer which this executor makes is even less satisfactory. He states that the voucher which he presented to his co-executor was drawn at the suggestion of a man named Kerr, who was associated with the office of his present counsel. Why Kerr should suggest, or why he should acquiesce in the drawing of a voucher by a person who had no claim against the estate is not explained. He then states that in company with Kerr he procured a check from his coexecutor, and that Mr. Kerr attended to the payment of the same, and that he knows no more about it.

It is shown conclusively that Kerr had left the State some period of time previous to this transaction, and, therefore, could not have made these suggestions to him or obtain this check from the coexecutor Harkness. We are, therefore, justified in assuming that this entire explanation of the transaction is untrue, and, if untrue, it was not an error of memory, such as a person might commit, but was evidently done for some specific purpose.

Furthermore, the attorney Ironsides, who Mr. Harkness testifies was with the executor Patterson when the request was made for these checks which had come back from the bank, is not called, either to corroborate the executor Patterson or to contradict the executor Harkness.

It seems to me that under these peculiar circumstances this executor Patterson is not fitted to continue in his administration of his office, and I shall, therefore, remove him.

Application granted.  