
    In re BENNETT’S WILL.
    (60 Misc. Rep. 28.)
    (Surrogate’s Court, Kings County.
    June, 1908.)
    Executors and Administrators—Disqualification.
    Though a question exists as to the ultimate disposition of the estate, in the determination of which the interests of the children of the executors will be adverse to the interest of certain claimants, it is no ground for the withholding of the letters from the executors.
    [Ed. Note.—Eor cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 32.]
    In the matter of the probate of the will of Adolphus Bennett.
    Application to withhold letters testamentary denied.
    
      Charles F. Moody (Michael Furst, of counsel), for petitioner.
    James C. Church, for next of kin.
   KETCHAM, S.

This is an application that letters testamentary be withheld from the persons appointed as executors in the decedent’s will. The decedent and his wife died under circumstances which leave the order of their deaths doubtful. The will of the husband left his entire estate to the wife, without alternative disposition in case the husband survived her. In the will of the wife the children of the two executors of the husband’s will are the residuary legatees. It follows that, if the wife was the first to die, the provision of the husband’s will in her behalf lapses, and the husband’s estate will pass to his next of kin, while, if the wife survived the husband, his estate, through her, will pass to the children of these executors.

It is therefore claimed by the next of kin of the husband that the executors should not be allowed to administer an estate in which the interests of their children will be necessarily arrayed against their duties as executors. It is freely conceded that the executors are capable, experienced, and honorable, and the only suggestion against their qualifications is that:

“The court should prevent them from being placed in a situation where there are temptations to misconduct.”

To allow them to assume the office to which the decedent has named them will subject them to no greater moral stress than is generally imposed upon persons to whom the care of the property of others is committed. The evil which is feared in this case takes the form of a supposed temptation to the executors to so deal with the subject of their trust that it will be sacrificed to the profit of their children. Any act on their part which would tend to this result must involve a conscious dishonesty, for nothing short of a deliberate intention to betray their trust would be efficient. If the mere apprehension that gentlemen of confessed sincerity will corruptly betray their trust to the advantage of others is to serve as a reason for excluding them from the opportunity of dishonor, then under a like rule few executors or administrators would be permitted to assume their duties. Nearly all of these officers have the control of moneys or property readily convertible into money.

Men are more prone to sin for their own benefit than to unselfishly violate their consciences for the good of others. The danger that an executor would steal for himself is greater than any fear that he would do an equally immoral act for the enrichment of another, even if that other were his own child. If these executors are to be set aside merely in order that they may not be led into temptation, then all executors, who, if they take office, must meet a temptation even stronger, will have to be excluded from office upon the same suspicion. It is intolerable that, because a man is about to be tempted, he is about to fall. Opportunity to sin is not the basis for a finding of fact that the sin is to be expected. Executors are daily found with duty on one hand and selfish interest on the other. Executors who claim the personal ownership of the assets which are claimed by others to belong to the estate, those who maintain personal claims against the estate in their charge, surviving partners who are also executors, trustees who hold for the lives of their wives or children against remaindermen who are strangers to their affection, would all be under the same conjectural reproach which is sought to be fastened upon the executors at bar.

There is no such legal and sufficient objection as the statute contemplates, and the motion should be denied.

Decreed accordingly.  