In re Flood's Will

• Decision Date: 13 July 1923
• Citation: 236 N.Y. 408,140 N.E. 936
• Parties: In re FLOOD'S WILL.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 408

140 N.E. 936

In re FLOOD'S WILL.

Court of Appeals of New York.

July 13, 1923.

Proceedings to prove the last will and testament of Eugene J. Flood, deceased, as a will of real and personal property. Application by Patrick J. McNulty, one of the executors named for letters testamentary. A refusal of letters by the surrogate was affirmed by the Appellate Division (206 App. Div. 602,198 N. Y. Supp. 693), and the executor appeals.

Reversed and remanded.

Cardozo and Crane, JJ., dissenting.Appeal from Supreme Court, Appellate Division, First department.

Frank E. Parham, of New York City, for appellant.

J. Power Donellan, of New York City, for respondent.

ANDREWS, J.

By his will, which has been admitted to probate in the Surrogate's Court of New York County, Mr. Flood named Anna Ryan and Patrick J. McNulty as executrix and executor of his estate. Certain legatees and devisees objected to the issuance of letters testamentary to Anna Ryan, on the ground that her circumstances did not afford adequate security to the persons interested in the estate; and to Patrick J. McNulty upon the same ground, and also on the ground that he was incompetent to execute the duties of the trust by reason of improvidence and dishonesty. By his decree the surrogate directed that letters be issued to Anna Ryan upon her giving a suitable bond, and that they be refused to Patrick J. McNulty, on the ground that he was incompetent to execute the duties of his trust by reason of improvidence and dishonesty, and that his circumstances did not afford adequate security to the creditors or persons interested in the estate. This decree has been affirmed by the Appellate Division, two of the justices dissenting.

[1] Section 94 of the Surrogate's Court Act provides that no person is competent to serve as an executor who is incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence, or want of understanding. If his circumstances are such that they do not afford adequate security to the persons interested in the estate he may still be entitled to letters by giving a proper bond. Section 97. Under such circumstances the surrogate may refuse to issue letters unless such a bond is given. It is not ground for an absolute rejection. To justify the decree of the surrogate, therefore, we must find in the case before us some evidence that Mr. McNulty was disqualified by reason of dishonesty or improvidence. His understanding and his sobriety are not questioned.

The power of the surrogate to refuse letters is limited by statute. If qualified, one named as executor is entitled to the issuance of letters, and his necessary qualifications in this state are described with minuteness. As we said in Matter of Leland, 219 N. Y. 387, 392,114 N. E. 854, 856:

‘The testator still enjoys the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will, and his solemn selection is not lightly to be disregarded. Appointment is not to be refused merely because the testator's selection does not seem suitable to the judge. * * * The courts will not undertake to make a better will nor name a better executor for the testator. They will not add disqualifications to those specified by the statute, nor disregard testator's wishes by too liberal an interpretation of the specific disqualifications, nor consider the size and condition of the estate, except as a minor consideration. Where the ties of kindred and long acquaintanceship lead the testator to choose the inexperienced wife or friend rather than the modern trust company the relative advantage to the beneficiaries will not justify a judicial veto on such choice.’

[2][3] The evidence as to the appellant's improvidence or dishonesty comes largely from statements made by him on his own examination. It may, at least, be inferred that the appellant had not successfully managed his private estate. He cannot remember how various payments,large...