
    Matter of the Estate of Edwin G. Freligh, Deceased.
    (Surrogate’s Court, New York County,
    November, 1903.)
    Surrogate’s Court — Contempt in refusing to answer questions — Issue of ownership between an executor claiming as an individual and his coexecutors — Joint custody of assets.
    Where, upon the application of an executor and testamentary trustee to account and resign, it appears that the testator had by a contract granted him, for royalties, exclusive unexpired rights to manufacture and sell a proprietary medicine compounded according to a secret formula of the testator, and the coexecutors and trustees, declaring themselves ignorant of the formula and entitled to use it in continuing the manufacture after expiration of the rights ■of the accounting executor, demand that he disclose the formula to them with any changes made in it by him and also assign to them all copyrights and registrations of marks and labels, and he refuses to do so and denies their right, he may properly refuse to answer, before a referee appointed only to hear and determine the questions arising upon the accounting, questions as to what the formula is, the changes he made in preparing the medicine and the formula he now actually uses, as to require him to answer these questions would be presently to grant the coexeeutors the contested relief.
    It is not a contempt for a witness to refuse to make a promise as to what he will do in the future and in case of the happening of some contingency.
    The court further held that neither Code Civ. Pro., § 2602, as to joint custody or deposit of assets nor Code Civ. Pro., § 2472, relative to the general power to control executors authorized it to direct before the accounting had been concluded — on the theory that there should be joint custody of assets — the accounting executor to communicate to the other executors the knowledge they sought and execute the assignments they wished.
    Application of one of the executors and trustees to account and resign.
    Manierre & Manierre, for petitioner.
    Kenneson, Crain, Emley & Rubino, for other executors.
   Thomas, S.

The respondent is one of three executors and testamentary trustees under the will of the testator. On his petition for permission to account and resign as executor and trustee, an order was made that he account for the purpose of being discharged, and the questions arising upon the settlement of said account were referred to a referee to hear and determine them. The issues raised by the account of the respondent and the objections filed thereto by the other executors and trustees which are deemed most important concern the rights of the parties in a certain proprietary medicine and the trade-marks and copyrights heretofore used in connection with it. The formula for this medicine was prepared by the testator and was by him communicated to the respondent, pursuant to a contract under which the exclusive right to manufacture and sell it was granted to the respondent for a specified term of years, who was to pay stipulated royalties. The royalties now being paid amount to $2,500 per year, and the rights of the respondent under the contract, as duly extended, will not expire until December, 1904.

It is contended by the continuing executors and trustees that the formula for this medicine has a large value; they say that they are ignorant of it, and they demand that the respondent disclose it to them; they also ask that any changes in the original formula made by the respondent in manufacturing the medicine be disclosed to them so that they may be enabled to continue the manufacture after the end of the respondent’s term. They also insist that the respondent assign to them all copyrights and registrations of marks and labels used in connection with said medical preparation.

The respondent urges that secrecy as to the method of compounding the medicine is his only protection against competition; he objects to making any present disclosure of the formula furnished him by the testator, and he denies the right of his coexecutors or of the parties interested in the estate to be informed of his own changes in the formula, or to take from him copyrighted labels consisting, in part, of certificates that the medicine is prepared by him. He raises questions of jurisdiction in the court and-of substantive right which need not be more fully set forth.

In the course of the hearing before the referee the respondent was sworn as a witness and was asked a series of questions, which he was directed hy the referee to answer, and which, by advice of his counsel, he refused to answer. One of the present applications is to punish him for contempt because of such refusal.

These questions called upon the respondent to communicate the formula given him by the testator, and the changes he made in preparing the mixture for the market, and the formula actually used by him. The order of the referee requiring the respondent to answer them amounts, if sustained, to the granting to the coexecutors of the very relief the right to which was the issue upon trial. Ho answer by the respondent could aid the referee in determining the right of the coexecutors to this relief. It was entirely immaterial to the issue on trial as to what drugs were used in compounding the medicine, or in what proportions.. The questions were also objectionable in that the witness was not asked to answer them orally, so as to be spread upon the minutes,. but in writing and under oath. The information was sought to satisfy the parties, and not for use as evidence.

A further question as to whether the respondent was, in the event of his petition for leave to resign being granted, ready to assign a trade-mark was entirely improper. It called for no fact, material or immaterial. A witness cannot be punished as for a contempt of court for a refusal to make a promise as to what he will do in the future and in ease of the happening of some contingency.

The motion to punish for contempt is denied.

A further application is made to require the respondent forthwith to communicate to his coexecutors and cotrustees full working formulas and directions for compounding and keeping the medical preparations being put upon the, market by him under contracts with the testator, with all such changes as may have been made, and also to execute assignments of copyrights and registrations of marks and labels, so that they may have joint custody of the property with him. This relief is claimed to be proper under section 2602 of the Code of Civil Procedure, as to directing joint custody or deposit of assets, and also under the general power to control executors as granted in section 2472. The general power of control “ must be exercised in the cases and in the manner prescribed by statute ” (Code Civ. Pro., § 2472), and I am not entirely clear that the summary remedy prescribed for the safekeeping of assets, concededly the property of the estate, is appropriate for the trial of an issue of ownership of property between one executor, claiming title as an individual, and his coexecutors. In any event, the remedy is discretionary, and where, as in this case, an accounting is pending in which such an issue can properly be disposal of (Code Civ. Pro., § 2731), the evidence having been nearly all taken, the more complete and deliberate remedy should be preferred. The respondent offered before the referee to place in his custody the original formula, prepared by the testator. The right of the coexecutors to anything more than this is debatable, and it should be settled by a decree which can 'be fully reviewed by appeal.

The present application is also denied.

Application denied.  