
    In the Matter of the Estate of Henry Weil, Deceased. Celia F. Wiley and Julia Shaw, Petitioners, Appellants ; Thomas G. Field, as Trustee, etc., of Henry Weil, Deceased, and Caroline G. Field and Others, Beneficiaries under said Will, Respondents.
    
      Security,—when not required of a testamentary trustee.
    
    The sole testamentary trustee of an estate, comprising between §1,000,000 and §3,000,000 worth of realty, and from §700,000 to §800,000 worth of personalty, will not, in the absence of any charge of misconduct or negligence, be required to give security for the due administration of his trust, where it appears that he is possessed of property worth at least §100,000 in excess of his liabilities, and that, as required by the will, he has abandoned his own business and devotes his entire time to the management of the trust estate.
    
      Appeal by the petitioners, Celia F. Wiley and another, from an order of the Surrogate’s Court of Kings comity, entered in said Surrogate’s Court on the 28th day of December, 1899, denying then-application for a decree directing Thomas G. Field, as testamentary trustee under the will of Henry Weil, deceased, to give security for the performance of his trust.
    
      Robert E. Deyo, for the appellants.
    
      John L. Cadwalader, for the testamentary trustee, respondent.
    
      William N. Dykman, for the other respondents.
   Willard Bartlett, J.:

This is an application under section 2815 of the Code of Civil Procedure to compel a testamentary trustee to give security for the performance of his trust, on the ground that his circumstances are such that they do not afford adequate security to the persons interested in the estate for its due administration.

The trust estate is a large one, comprising between $1,000,000 and $2,000,000 worth of realty and from $700,000 to $800,000 of personal property. The trust arises under the will of Henry Weil, who died in 1898, leaving four daughters, namely : (1) Mrs. Caroline W. Field, who has two grandchildren living, both of whom are infants; (2) Mrs. Celia F. Wiley, who has an infant daughter living; (3) Mrs. Julia Shaw, who has no children ; and (4) Mrs. Sarah Butler (now Katlian), who has one son. After making several small gifts and three conditional bequests, aggregating $350,000, to his sons-in-law, Thorne Shaw, Thomas G. Field and Thomas Wiley, the" testator devises and bequeaths his residuary estate in trust to his son-in-law Thomas G. Field, as executor and trustee, during the lifetime of said Thomas G. Field and until the youngest grandchild of Mrs. Caroline W. Field shall arrive at the age of twenty-one years. During the existence of the trust the income is to be divided equally among the testator’s four daughters. Uq>on the termination of the trust the estate is to be divided equally among the testator’s children then living and the issue of any deceased child who shall have died leaving issue.

Upon the death of the son-in-law Thomas G. Field, who is named in the'will as executor and trustee, the testator authorizes another son-in-law, Dr. Thorne Shaw, to nominate a successor to the said Thomas G. Field in the trust. The 9th numbered paragraph of the will is in these words: I hereby direct that said Thomas G. Field be allowed and paid for all his services and duties under this will the sum of five thousand (5,000) dollars per annum, in lieu of all legal commissions, fees and charges to be rendered under: this will, upon condition, however, that he gives up his business as a broker and devotes all his time to the duties under this will. And said Field shall be and is hereby authorized, at the expense of my residuary estate, during his trusteeship, to rent an office and hire a boy to attend the same. Any successor to my said executor and trustee shall be paid the same sum per annum as above allowed to said Field for such services, and such salary shall be in lieu of all charges and commissions, as such trustee,- in carrying out the provisions of this will.”

Mr. Field, the present trustee, is about forty-nine years of age. From the time of his marriage to the testator’s daughter Caroline, in 1869, until the testator’s death in 1898, he was successfully engaged in the business of a stockbroker, being a_ member of the Consolidated Exchange in the city of Hew York, where he acquired an extensive experience in dealing in stocks, bonds and investment securities: He swears that, prior to Mr. Weil’s death, he was pos-

sessed of property to the value of $100,000 or thereabouts, and that he is now worth in excess of that sum over and above all his debts and liabilities. He has given up his own business and devotes all his time to the management of the trust estate, as required by the will. Ho misconduct or negligence on the part of the trustee is charged or suggested; but two of the testator’s daughters seek by this proceeding to compel him to give security for the due administration of his trust by procuring a surety company to execute a bond in his behalf.

To justify the exaction of security from a testamentary trustee, under section 2815 of the Code of Civil Procedure, some fact must be shown, the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as executor iii a will,' would make it necessary for such a person to give security in order to entitle himself to letters.” Referring to section 2638, we find that a person named as executor in a will may entitle himself to letters testamentary by giving a bond, in spite of the establishment of the objection that he is a non-resident, or that "his circumstances are such that they do not afford adequate security to the creditors or persons interested in the estate for the due administration of the estate.” The latter objection is the only one urged here, and in relying upon it the appellants are obliged to contend that the circumstances to which the statute refers are not limited to pecuniary circumstances. The papers disclose nothing in the financial condition of the trustee to give rise to any doubt as to his fitness or capacity. In order to be a competent trustee the law has never required that a man’s wealth should be commensurate with the .amount of property intrusted to his care. So far as pecuniary circumstances are concerned, Mr. Field fulfills every essential condition of his position. But the appellants insist that letters testamentary may be withheld from an executor (and hence that a testamentary trustee may be compelled to give security) on account of the situation in which the executor or trustee is placed by the will itself. Thus they say : “ If, therefore, the £ circumstances ’ surrounding this trustee, as created by the will, show that there is great risk to the beneficiaries, even though the trust be faithfully executed by the trustee so far as he has power to do so, security should be required.”

Their argument on this point is really a criticism upon the will as an unwise and improvident disposition of the property of their testator. We are told that the trustee stands alone; that he is not required to submit any proposed course of action to the judgment of another trustee ; that under the terms of the trust there must be a period when the estate will be without a legal custodian, and that the terms of the trust show that it was erected solely to confer a personal benefit upon the trustee. All these objections indicate that the appellants think they could have made a better will for their father than he made for himself, but they do not tend in the least to show that the trustee, in whom the testator manifestly reposed the utmost confidence, should be required to associate with himself a surety company as a cotrustee. Such, however, is the practical result which is sought to be accomplished in the present proceeding, and would be the virtual effect of the order desired by the appellants. To grant such an order would be to interfere with the testator’s selection of the custodian of his property in the absence of any sufficient reason to doubt the ability or intent of the trustee to carry out the testator’s wishes as expressed in his will. I think the surrogate was right in denying the application.

All concurred.

Order of the Surrogate’s Court of Kings county affirmed, with ten dollars costs and disbursements to be paid out of the estate.  