
    In the Matter of the Estate of Eliza Eisner, Deceased. Julius H. Eisner and Jacob Stern, Two of the Executors and Trustees under the Last Will and Testament of Eliza Eisner, Deceased, Appellants, v. Mark H. Eisner, one of the Executors and Trustees under the Last Will and Testament of Eliza Eisner, Deceased, Respondent.
    
      An order directing the joint contn-ol of an estate by executors is discretiona/ry.
    
    The order of a surrogate, directing the joint control of the funds of an estate by all the executors named in a will, rests in his-discretion, and the Appellate Division of the Supreme Court will not interfere unless it be clearly shown that such discretion has been abused.
    Such an order may properly be made whenever the circumstances are such that joint custody, pursuant to an agreement upon the part of the executors themselves, would commend itself to the surrogate as suitable and wise.
    Ordinarily each executor should have the same voice and control in the matters of the estate.
    Appeal by Julius H. Eisner and Jacob Sterii, two of the executors and trustees under the last will and testament of Eliza Eisner, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 30th day of January, 1896, denying their motion to remove Mark H. Eisner from his office of executor and trustee under the last will and testament of Eliza Eisner, deceased, and also from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 30th day of January, 1896, granting the application of Mark H. Eisner for the joint custody and control of the funds of the estate of the. said. Eliza Eisner.
    
      Burton A. Harrison, for the appellants. -
    
      George W. Carr, for the respondent.
   Barrett, J.:

Upon a careful examination of the record we see no reason to disturb the decision of the learned surrogate declining to remove Mark H. Eisner from his position as executor and trustee under the will of the decedent, Eliza Eisner. There was a sharp conflict in the affidavits presented to the surrogate upon the question of the fitness of the respondent to serve. In view of the violence of the attack .upon him, it is remarkable that no such motion has ever been made before, although the decedent’s will was probated in 1885. Nor was the present motion made until the respondent petitioned the court for leave to exercise a joint control with the other executors and trustees of the funds of the estate. It is said that as long as the respondent was content to remain quiet nothing was done. The respondent says that he consented, at the outset, that the funds should be subject to the order of the other two executors and trustees alone, because one of the beneficiaries of the estate claimed that he owed it money, and he was desirous of allaying all suspicion. He strenuously denies, however, that he took no part in the affairs of the estate, and, though there is much dispute on the point, the proof seems to preponderate in his favor. He specifies the duties he performed, which were extensive and important, and the attorney for the estate (now his personal attorney), whose knowledge Was probably greater than that of any one else, corroborates him fully. Concededly he joined in all the accountings and received his commissions regularly. In view of this participation, the delay in making the motion to remove him is not satisfactorily explained.

Thus the allegations of drunkenness, improvidence and mental incapacity come with a rather bad grace at this late day. Nor are' they by any means made out by cogent and convincing proof. The charges made are of the most general nature, and relate almost exclusively to the past. A physician under whose care the respondent seems to have been for a brief period makes allegations derogatory to his patient. His views, however, are based wholly on the respondent’s condition in 1892, whén he went to Europe for his health. The doctor makes the surprising assertion • that, from his knowledge of his patient’s condition at that time, he believes “it impossible, that either his mental or physical constitution can have sufficiently recovered and become normal as to capacitate him for the present or future discharge of such duties as must be devolved by the business of. a trust, such as that to which he was appointed in .the will of Eliza Eisner, deceased.” Another affiant states what he claims was. the respondent’s condition in 1891, and says: “ And I am not aware that any change has taken place in either his mental, physical or moral character,; certainly there has none for the. better.” Against such affidavits, unsatisfactory as to the past, and quite unreliable as; to the present, the respondent presents affidavits from his present physician, his cousin and partner, his attorney, and the husbands of two of his nieces. These may be considered to be a vindication on all the charges made. We are quite satisfied with the decision of the learned surrogate, and the views which he gives in his opinion in support of that decision.

With regard to the second order, which directs the joint control of the funds of the estate by all the executors and trustees, we have reached the same result. That order was within the discretion of the surrogate (Code Civ. Proc. § 2602), and that discretion has certainly not been abused. In The Matter of Adler (60 Hun, 481) the surrogate declined to give the direction and his order was affirmed. It was held that the appellate branch of the Supreme Court would not interfere with the surrogate’s discretion, whether favorable or unfavorable to the application, unless the applicant could show that the discretion had been abused. The court there pointed out the distinction between the review of the discretion exercised by the Special Term of our own court and of that exercised by an independent tribunal. It is true that it was intimated that the applicant must make out a case calling for the surrogate’s interference, and showing that the-protection of his rights and interests, or the rights and interests of others, required the favorable- exercise of the discretion conferred. It was not thereby intended, however, to lay down any hard and fast rule by which the surrogate should be governed in dealing with such applications. It may not be a matter of course, as was there said, to require the joint deposit of the funds of the estate. But it is for the surrogate to say what facts suffice to call for the exercise of his discretion. It would certainly require very special, and indeed most unusual, circumstances to warrant this court in holding that a discretion favorable to the joint control of funds of an estate, by all the -executors was a violation of justice and amounted to a reversible abuse of discretion. In The Matter of Delaplaine (8 N. Y. St. Repr. 776) Surrogate Rollins examined the section of the Code in question with great care, reviewing the authorities prior to this new enactment. His conclusion was that “the occasion for enforcing a joint custody is found to have arisen whenever the circumstances are such that joint custody, pursuant to an agreement of the executors themselves, would commend itselfi to the surrogate as suitable and wise.” This seems to be a sensible rule, and following it the surrogate, in the case at bar, properly directed the joint custody of the funds of the estate. There is no good reason why this executor should not have the same voice and control as his co-executors. He owes his appointment to the testatrix, who intrusted executorial duties to him quite as much as to the others. That he should desire his proper and equal share of the power and responsibility incident to those duties is surely' commendable. It is no reason for depriving him of the effective exercise of the authority conferred upon him that he is hot liked by his co-executors and certain of the beneficiaries under the will. The charges against him having failed, the present question was determined upon its inherent merits, the applicant being treated as an executor of normal character and capacity. Hpon the facts with regard to the applicant’s relation to the estate, and considering all that has transpired, since his appointment, the surrogate could not well have refused his application, although we do not mean to say that even such refusal would have been deemed an abuse of discretion. In whatever way the discretion might have been exercised, upon these facts we could not properly have interfered therewith. . We think, however, that the discretion of joint control was, under all the circumstances, the wisest and fairest exercise of the discretion conferred upon the surrogate by the statute. Each of the orders' appealed from should, therefore, be affirmed, with costs.

Van Brunt,. P. J., Rumsey, O’Brien and Ingraham,' JJ., concurred.

Orders affirmed, with costs.  