
    
      In re O’Brien’s Estate. In re McCarthy et al.
    
    
      (Surrogate’s Court, Rensselaer County.
    
    January 20, 1892.)
    1. Executors—Pecuniary Ibbesponsibieity—Bond.
    Where testator’s personalty is of the value of $15,000 or more, and his will clothed his executors with an important trust during the life of one of his children, and the executors have little or no pecuniary responsibility and are inexperienced in the management of such affairs, their letters will be revoked, as may be done under Code Civil Proc. § 2685, subd. 5, and section 2687, where an executor’s “circumstances are such that they do not afford adequate security to the creditors or persons interested for the due administration of the estate, ” unless within five days they file a bond, with two good and sufficient sureties in a penalty double the value of the personalty.
    2. Same—Costs.
    Since Code Civil Proc. § 2687, provides that a proceeding to revoke such letters maybe dismissed if a bond be filed “upon such terms as to costs as justice requires, ” the executors will be adjudged to pay them where they are largely the result of their unwillingness to furnish a bond, as they were authorized by section 2686 to do.
    Proceeding to revoke letters issued to Charles McCarthy and Thomas O’Brien, executors under the last will and testament of William E. O’Brien, deceased.
    Decree nisi.
    
    
      Myers & Norton, for petitioners. William, J. Ludden and L. JE. Griffith, for executors.
   Lansing, S.

I have carefully read the testimony produced before the referee, together with the briefs of counsel and the findings of the referee. I do not deem it necessary to enter into any extended examination of the facts in this case, or of the law pertaining to applications of this character. Each case must depend upon its oxvn circumstances, and but little aid is afforded toy the adjudged, cases, since no case can be found which is exactly parallel with the present. It is sufficient-to say, in general, that these executors are employes in large business establishments, and have been so employed continuously for more than 20 years past at remunerative salaries. Their honesty has not been assailed or questioned in this examination. Substantially the sole question (outside of the question of the personal relations which existed between the deceased and said executors subsequent to the execution of his will) has been the question of the sufficiency of the pecuniary responsibility of the executors to afford adequate security for the due administration of the estate. The referee has found from the evidence that the executor Charles McCarthy, although in receipt of a comparatively large salary for a great many years, is pecuniarily irresponsible, being the owner of neither personal or real property of any description. That the executor Thomas O’Brien is a person of but little pecuniary responsibility, depending altogether upon the value of a piece of real estate in the city of Troy, his only property, which is assessed at about $5,000, and mortgaged for about $4,000. Section 2685, Code Civil Proe., provides that “in either of the following cases a creditor or person interested in the estate of a decedent may: present to the surrogate’s court from which letters are issued to an executor or administrator a written petition, duly verified, praying for a decree revoking these letters, and that the executor or administrator may be cited to show cause why a decree should not be made accordingly. ” Subdivision 5: “In the case of an executor, where his circumstances are such that they do not afford adequate security to the ■creditors or persons interested for the due administration of the estate. ” Section 2687 provides: “Upon the return of the citation issued as prescribed in the last section, if these objections, or any of them, are established to the satisfaction of the surrogate, he must make a decree revoking the letters issued to the persons complained of; but the surrogate may, in his discretion, ■dismiss the proceedings upon such terms as to costs as justice requires, and may allow the letters to remain unrevoked in either of the following cases:” “(3) Where the case is within subd. 5, § 2685, if the executor gives within a reasonable time, not exceeding five days, a bond as prescribed in article 1 •of this title.” Subd. 5, § 2685, (or section 18, p. 72, 2 Rev. St.,) from which said section was derived, has been repeatedly before the court for construction. It is well settled that the choice of an executor by a testator is not restricted to persons of large means, or those whose estates are as great or greater than those proposed to be committed to them. On the contrary, the law permits a person to select from among his friends persons of approved honesty ■and business qualifications, without regard specially to their pecuniary responsibility. Holmes v. Cock, 2 Barb. Ch. 426; Shields v. Shields, 60 Barb. 56; Grubb v. Hamilton, 2 Dem. Sur. 414. The rule is based on the ground that a testator has the same right to exercise his choice in the selection of a person to manage his estate after his death that he has to select one to represent him during his life. The courts will ordinarily respect his wishes in the selection of an executor, notwithstanding it is the settled policy of the law in ■every case (save where executors, trustees, and guardians are appointed by will) to require that the persons appointed to such offices should be persons possessing honesty, integrity, and business qualifications, and, in addition thereto, that they should furnish two good and sufficient sureties in double the amount of the property committed to their charge for the faithful performance of their duties. This wide difference as to security and pecuniary qualification recognized in the law between executors and trustees appointed by last wills and those appointed by the court rests almost entirely for its support upon the presumption that the appointment of executors grows out of personal confidence and trust, rather than upon the pecuniary qualification of the executor. Notwithstanding this rule, however, the statute provides, and the courts hold, that, however willing the testator may have been to intrust his affairs to a clearly improper person, named as executor in his will, yet that those interested in the estate at his death are not obliged to abide by his choice.

In this case the will was made some 10 years before the death of the testator, and the circumstances are such as to warrant the conclusion that the deceased would not have selected one, and probably neither of them, as executors, had he made his will at or about the time of his death; for it appears that the testator, by a memorandum upon his willi made a year or two after it bears date, intended to substitute some other person for Mr. Thomas O’Brien as executor in his will; and, although that intent was not effectuated, by reason of the will not having been formally re-executed, it sufficiently appears in connection with the circumstances under which it was made that he did not at that time desire to have Mr. O’Brien continued as executor under his will; and, although their relations subsequently became friendly, the deceased did not change his will in that respect. As to the other executor, Mr. McCarthy, the relations of the deceased with him for the last few years prior to his death were not such as to warrant the conclusion that he would have selected him as executor had he made his will shortly prior to his death. The matter then comes to this: Although the executors have received a valid appointment under the will, yet they are measurably deprived of the benefit of the rule that they occupy that position by reason of the personal confidence and trust of the testator in them, which the law assumes to stand in the place of pecuniary responsibility. This fact, which is established, must relegate them to the position of those liable under the statute of having tlieir pecuniary qualification to manage estates inquired into in a manner similar to that of persons seeking such appointment from the court; in other words, the reason for the rule having failed, the rule itself falls. The executors are thus deprived of the benefit of the presumption that they are qualified for their positions, arising from the fact that they have received their appointment from the testator. It seems to me, therefore, that without" the slightest reflection upon the character of the executors, I should consider whether the circumstances of the executors, or either of them, in connection with their business methods and habits, are such as to furnish adequate security for the due administration of the estate. My conclusion upon the whole is that, as the personal estate is very considerable, amounting to something like fifteen to twenty thousand dollars, and there is also connected with the will a trust of considerable importance, extending through the lifetime of one of the children of deceased, and as the said Thomas O’Brien and Charles McCarthy are possessed of little or no means, and their business habits and experience have not qualified them for the management of important pecuniary responsibilities, they should give a bond in the usual form, with two good and sufficient sureties, for the faithful performance of the duty of their office of executor and trustee in the penal sum of $30,000, unless it should be made to appear that the personal property exceeds $15,000, in which case the bond shall be double the amount of the personal estate; and, as the costs and expenses of this proceeding have largely been the result of the unwillingness of the executors to furnish a bond as they were authorized to do under section 2686 of the Code, upon the presentation of the petition, I think they should personally pay the disbursements of this proceeding, amounting to the sum of $101.40, and, in case of their failure to give such bond and pay such disbursements within five days after service of an order to that effect upon them-, an order may be entered revoking the letters issued to them, or the one so failing to comply with the conditions above prescribed.  