Summary
The Surrogate considered an application to revoke an executor's letters and remove him as testamentary trustee based on his retention of estate funds in a business he operated as surviving partner. The court found that the investment was unauthorized and ordered the executor to provide a bond under the applicable statutory provisions, while noting that an executor-surviving partner was disqualified from acting for both interests.
Topics
Practice areas
Questions Presented
- Whether the executor's retention and investment of estate funds in his own surviving partnership constituted grounds to revoke his letters testamentary or remove him as testamentary trustee.
- Whether, under Code of Civil Procedure sections 2685 and 2687, subdivision 3, the executor should be required to furnish a bond for estate funds retained in the partnership.
Holdings
- Because the executor was also the surviving partner and could not deal with himself regarding continuation or sale of the business, and because the retained funds were invested in securities unauthorized by law, the surrogate should require him to give a bond under Code of Civil Procedure section 2687, subdivision 3, for the funds retained as executor.
- Requiring security would not prejudice the executor's pending appeal because the judgment against him was personal as well as official, permitting him to prosecute the appeal personally even if his letters were revoked.
Key quotations
“But one of the executors qualified— the surviving partner—and it seems clear that under tire circumstances he could not agree (as executor) with himself ■ (as surviving partner) as to the matters referred to in the copartnership articles.” (76)
“The fund is earning six per cent, interest in the executor’s hands, which is considerably in excess of the income usually derived from investment of trust funds. But the investment is not sanctioned by the law,” (76)
Factual background
The decedent's estate had a roughly $30,000 interest in a firm operated by the respondent, who was the sole surviving partner and the only executor who qualified. The partnership agreement allowed the surviving partner and the decedent's legal representatives to agree whether to continue or sell the business, but the respondent could not impartially agree with himself in his separate capacities. The respondent retained most of the estate's interest in the business at six percent interest, with the widow and one petitioner having consented to continued retention, while the amount due to the estate remained disputed on appeal.
Procedural history
The executor's accounting generated a dispute over the amount owed to the estate by the partnership. The surrogate's determination, affirmed at General Term, was pending on appeal to the Court of Appeals. The petitioners separately sought revocation of the executor's letters and removal of the trustee; the court declined to revoke the letters on the stated facts but ordered the respondent to furnish a bond securing the retained estate funds.
Remand instructions
The respondent must give a bond as provided in Code of Civil Procedure section 2687, subdivision 3, for the funds retained by him as executor, within the period specified by the statute.