Wood and others vs. Wood, executor, &c., 4 Paige Ch. 299

The Chancellor. The only question which is properly before me on this appeal, is, whether the surrogate was right in granting letters testamentary to the respondent, without requiring security for the faithful execution of his trust. If the will is invalid, from a want of capacity in the testator to make it, or if the proof of the will was not properly made before the surrogate of Albany, on the ground of a different residence of the testator at the time of his death, the remedy of the widow and next of kin was by an appeal to the circuit judge.

And if the testamentary guardian, improperly or without any sufficient cause, attempts to remove these children out of the jurisdiction of this court, or deprives them of the nurture and cave of their mother at their present tender ages, her application must be made directly to the chancellor; and not by way of appeal from the decision of a surrogate. Previous to the revised statutes, the surrogate was obliged to grant letters testamentary to the executor named by the testator, although he was known to be insolvent. (The King v.

Sir Richard Raines, Carthew, 457.) But where the executor became insolvent after the mating of the will, although the creditors and legatees of the testator could obtain no relief in the ecclesiastical court, the court of chancery sometimes interfered to protect the estate from waste, or loss, by such insolvency. (Utterson v. Mair, 4 Bro. C. C. 270. 2 Vesey, jun. 95, S. C.) But poverty alone, if known to the testator, was not of itself sufficient to authorize the court of chancery to take the administration out of the hands of the executor selected by him. (Howard v. Papera, 1 Mad.

Rep. 142.) The revised statutes, however, have introduced a new principle into our testamentary law. Any person interested in the estate of the testator may now object to the granting letters testamentary to the executor named in the will, on the ground that his circumstances are such as not to afford adequate security to the creditors, legatees, &c. for the due administration of the estate. And if the surrogate is satisfied of the validity of the objection, he may require security as in cases of intestacy. Where the executor is a non-resident of tire state, he must also give the like security. (2 R.

S. 70, § 6, 7.) Under these provisions of the revised statutes, it is not material to inquire whether the testator was aware of the want of responsibility in the executor at the time of making the will. For if the testator has been so improvident as to commit the administration of his estate to one whose cirumstances are such as not to afford adequate security for the faithful discharge of his trust, the court must interfere for the protection of the estate against the effects of such improvidence.

The declarations of the testator, as proved by the gentleman who drew the will in this case, were therefore wholly irrelevant to the inquiry which was pending before the surrogate. They merely proved that the testator was willing to trust the executor with his estate that, however, was previously shown by the will itself, which named him as the executor, without requiring him to give any security.

From the evidence, as to the standing and circumstances of this executor, I think the surrogate erred in supposing those circumstances were such as to afford adequate security for the faithful administration of this estate; especially as the trust, as to most of the property, is to continue for nearly twenty years. And in the mean time the whoie property, as well as the person of the executor, is to be removed beyond the jurisdiction of this state.

The third of the estate which is given to the executor, for the purpose of enabling him to support and educate the children, should not be taken into account in ascertaining the value of the executor’s property in reference to this trust. The whole of it may be required for the specific object for which it was given. And one of the reasons for requiring bonds of the executor, is to secure the faithful application of that third of the estate to the support and education of the children, if it should be necessary for their support.

All that the executor has then, which can be called his property, is an unliquidated, and probably an unadmitted demand, of several years standing, against his father, for his services while he remained at home. And there is nothing in the testimony to show whether this claim, evén if it is a legal one, can or cannot be collected of the father. There is, however, another provision of the revised statutes which shows the impropriety of granting letters testamentary without security, in this case, more clearly still. By the 20th sect, of the title of the revised statutes before referred to, (2 R.

S. 72,) it is made the imperative duty of the surrogate to require security from an executor, upon proof that he has removed, or is about to remove from the state. And if letters testamentary had been granted in this case, without security, the widow and children might have immediately applied to the surrogate to compel the executor to give security; as he admitted, on his examination, that he was about to remove to the slate of Ohio. No good, therefore, could have resulted from a grant of letters testamentary, in conformity with the decision of the surrogate.

But the executor, in the mean time, and before any citation could have been served upon him, might have departed with the property beyond the jurisdiction and control of the surrogate; and thus might have evaded this salutary provision of the statute. The decree of the surrogate, directing letters testamentary to issue without security, must therefore be reversed, with costs to the appellants, to be paid out of the estate of the testator.

A transcript of the decision, or decretal order to be eniered on this appeal, must be remitted to the surrogate ; with directions to him to enter an order, in conformity with the decision of this court, requiring the executor to give a bond with sureties, as is required by law of administrators in cases of intestacy, before such executor shall be entitled to letters testamentary on the estate of the decedent.