In re Moulton's Estate

Hardin, P. J.

1. Section 2545 of the Code .of Civil Procedure provides that “the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law.” If the parties to the proceeding now before us had followed the requirements of this section, by presenting to this court a “decision in writing,” which stated separately the facts found and the conclusions of law, the practice would have been much more satisfactory than that which now appears in the appeal-book before us; and it would have been in keeping with our decision in Otis v. Hall, 6 N. Y. St. Rep. 592, and also our decision in Re Keef, 43 Hun, 98 . In the latter case it was said in the opinion delivered in this court, viz.: “Unless *722 some authority can be found to the contrary, we thin, ¿he safer practice would be for the surrogate to make an independent decision, with findings of fact and law, accepting or rejecting the conclusions of the referee, as shall seem just. Exceptions can be filed to such findings and to subsequent refusals to find or findings in'settlement of case, as provided in section 2545.”

2. It appears by the evidence, as well as by the admission made upon the hearing, that there was an intermarriage of the respondent with the deceased. The position of the appellants, to support which they gave considerable evidence, is that the marriage took place in the spring of 1877. The position of the respondent is, to which she gave considerable evidence in support thereof, that the marriage took place in the spring of 1876. Being the widow of the deceased, she was per force of the statute 1 entitled to administer upon his estate, having the prior right to letters of administration. In re Page, 107 N. Y. 266 , 14 N. E. Rep. 193; Libbey v. Mason, 112 N. Y. 525 , 20 N. E. Rep. 355. Having a right to administration, no notice or citation was necessary. Code Civil Proc. §§ 2660-2662.

3. Whatever force there may have been in the objection made to the appointment of the respondent as administratrix, and the issuing of letters of administration to her by the special surrogate of the county of Oneida, without record proof of his authority to act (by reason of sickness, absence, or disability of the surrogate) when the objection was taken in the petition filed.in 1886, we think the force thereof has been wholly removed by chapter 455 of the Laws of 1888, which provided in that chapter that “the 1 official acts of John D. E. Stone, as special surrogate, * * * since the 1st day of January, 1885, while acting in the place of the surrogate of said county by reason of the sickness, absence, or lunacy of said surrogate, so far as such acts may be affected, impaired, or questioned, by reason of the failure of the making and filing of a certificate showing the occurrence of such disabilities, as required by law, are hereby legalized, ratified, and confirmed, and the same shall have all the force and effect and validity as if such certificate had been made and filed.” It may be observed incidentally that the surrogate seems to have approved of the action of the special surrogate very soon thereafter. Surely, such was apparent from the action of the surrogate in filing the inventory, and in approving and filing a bond executed by the administratrix. Whatever irregularity there may have beeniwe think was cured before the making of the order brought before us on this appeal.

4. Sections 2684, 2685,2686, and 2687 of the Code of Civil Procedure confer upon the surrogate’s court power and prescribe the practice and mode of procedure for the removal of an administrator or revocation of letters of administration issued to such administrator. Section 2685 provides that “a written petition, duly verified, praying for a decree revoking those letters, and that the executor or administrator may be cited to show cause why a decree should not be made accordingly: (1) Where the executor or administrator was, when letters were issued to him, or has since become, incompetent or disqualified by law to act as such, and the grounds of the objection did not exist, or the objection was not taken by the petitioner, or a person whom he represents, upon the hearing of the application for letters; (2) where, by reason of his having wasted or improperly applied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge, or by reason of other misconduct in the execution of his office, or dishonesty, drankenness, improvidence, or want of understanding, he is unfit for the due execution of his office; (3) where he has willfully refused, or without good cause neglected, to obey any lawful direction of the surrogate contained in a decree or order, or any provision of law relating to the discharge of his *723 duty; (4) where the grant of his letters was obtained by a false suggestion of a material fact.” Section 2686 provides that “a petition, presented as prescribed in the last section, must set forth the facts and circumstances showing that the case is one of those therein specified. Upon proof, by affidavit or oral testimony, satisfactory to the surrogate, of the. truth of the allegations contained in the petition, a citation must be issued according to the prayer thereof.” It is further provided in section 2687: “Upon the return of a citation, issued as prescribed in the last section, if the objections, or any of them, are established to the surrogate’s satisfaction, he must make a decree, revoking the letters issued to the person complained of. But the surrogate may, in his discretion, dismiss the proceedings, upon such terms, as to costs, as justice requires, and may allow the letters to remain unrevoked, in either of the following cases: (1) Where the case is within subdivision third of the last section but one; (2) where the case is within subdivision fourth of that section, if the person cited is entitled to letters, notwithstanding the false suggestion.” We think questions arising under these sections are largely “in the discretion of the surrogate.” In considering certain powers of the surrogate, in McGregor v. Buel, 24 N. Y. 169 , not wholly dissimilar to the questions which may arise under the sections of the Code to which we have just referred, it was said by Denio, J.: “The determination of the surrogate upon such questions is, as it should be, summary and exclusive.” We think the provisions of section 2687, to-wit, “if the objections, or any of them, are established to the surrogate’s satisfaction, he must make a decree revoking the letters issued to the person complained of,” were intended to confer upon the surrogate a judicial discretion in viewing the facts and circumstances disclosed by the evidence furnished to sustain the objections made. See In re West, 40 Hun, 296 ; affirmed 111 N. Y. 687 , 19 N. E. Rep. 286.

We think that the evidence and proceedings submitted to the surrogate fail to establish that the administratrix was “incompetent or disqualified by law to act as such. ” It was provided in the Revised Statutes (volume 2, p. 75) that no letters of administration should be granted “ to any person who shall be judged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding. * * *” In expounding that provision of the statute, the chancellor said, in Coope v. Lowerre, 1 Barb. Ch. 47 , viz.: “Ho degree of legal or moral guilt or delinquency, therefore, is sufficient to exclude a person from the administration, as the next of kin, in the cases of preference given by the statute, unless such person has been actually convicted of an infamous crime. * * * The improvidence which the framers of the Revised Statutes had in contemplation, as a ground of exclusion, is that want of care or foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished in value by improvidence, in case administration thereof should be committed to such improvident person. * * * The evidence in this case tending to show the respondent’s dishonesty, and that be had been guilty of divers offenses against the laws of society, but which could not throw any light upon the question of his providence or improvidence, should therefore have been excluded by the. surrogate.” In McMahon v. Harrison, 10 Barb. 659 , it was held, viz.: “Under the provisions of the Revised Statutes respecting the granting of letters of administration in cases of intestacy, vice and moral delinquency will not of themselves disqualify a person to act as administrator.” In Emerson v. Bowers, 14 N. Y. 452 , the question considered by the court was whether the appellant there was legally incompetent to serve, and it was said that the fact that a person is “of small pecuniary means, and that he has been guilty of misconduct or mismanagement in administering the trust-estate, do not authorize the surrogate to supersede the letters testamentary, under 2 Rev. St. p. 72, §§ 18-21, and Id. p. 69, § 3, on the ground that the executor is legally *724 incompetent to serve ‘by reason of improvidence;’” and it was also further held; “The term ‘ improvidence ’ refers to such habits of mind and conduct as render a man generally, and under all ordinary circumstances, unfit to serve;” and, in delivering the opinion in that case, Comstock, J., referred to Coope v. Lowerre, supra, approvingly; and the same case was approved in McMahon v. Harrison, 6 N. Y. 447 ; and the case was also approved in Coggshall v. Green, 9 Hun, 472 ; and in the course of the opinion delivered by Talcott, J., it was said, viz.: “Moral guilt or delinquency is not a ground for excluding a person from receiving letters unless he has been convicted of an infamous crime.”

The learned counsel for the appellants, in a very exhaustive argument submitted to us, lays great stress upon the circumstances attending the transfer of a mortgage for $8,650 by Symonds, as assignee, to the plaintiff, and to the fact that she had commenced an action to foreclose that mortgage, and had omitted to place the same upon the inventory filed,' and seems to suppose that her removal from the office of administration was essential in order to enable the appellants, as heirs at law, or as creditors of the deceased, to contest the title of the plaintiff to the mortgage, and to enable them to assert that the mortgage in fact was an asset belonging to the estate of the deceased; and he calls our attention to the Laws of 1858, c. 314, which authorizes executors or administrators to maintain an action to set aside fraudulent conveyances, transfers, or assignments made by the deceased. It must be borne in mind that the object of that statute is to enable creditors summarily to reach assets that have been fraudulently disposed of by the intestate; however, we see no difficulty, under the provisions of that statute, in the creditors availing themselves of all its provisions in this case, even though the respondent remained as the administratrix. Surely, upon creditors applying to the administratrix to bring such an action as the Laws of 1858 authorizes, she would be called upon to yield to the request, or to make a refusal. If she refused, then the creditors could bring an action and make her a defendant in her representative as well as her individual capacity, and allege her refusal to bring the action, and thus the creditors would have the full benefit of the" provisions of the statute to the same extent as though the action had been brought by the administratrix. In Bate v. Graham, 11 N. Y. 237 , it was held that if theadministrator “collude with the fraudulent vendee, or, after reasonable request, refuse to take proceedings to impeach his title and reach the property in his hands* a creditor may maintain an action against Mm and the executor or administrator for that purpose. ” That case was decided in 1854, and was referred to approvingly in Bank v. Leggett, 51 N. Y. 554 . In Phelps v. Platt, 50 Barb. 430 , it was said: “Ordinarily a creditor of the estate of a deceased person cannot maintain an action against a fraudulent vendee of the latter to impeach the sale of personal property, unless the executor or administrator should collude with the fraudulent vendee, or, after reasonable request, refuse to take proceedings to impeach the title and reach the property in his hands.” We are of the opinion that the removal of the respondent from the office of administratrix was not necessary to. enable the appellants, as creditors, to maintain proper action to avoid the alleged ownership by the plaintiff of the mortgage on the ground that it was the property of the deceased, and that the transfer thereof to the plaintiff was fraudulent. In Re Kellogg, 39 Hun, 284 , it was said by Landon, J.: “This executor, being the donee of the gift, did not disaffirm it. ,His interest was opposed to his duty. But he ought to have disaffirmed it, and, because he voluntarily failed in duty, the surrogate has power to compel his performance of it. The statute authorizes the surrogate to control executors. 2 Rev. St. p. 220, § 1. In such case the general creditor can invoke this remedy. The statute dispenses with judgment and execution. Southard v. Benner, 72 N. Y. 424 .” We see nothing in that case inconsistent with the views we have already ex *725 pressed. In Lichtenberg v. Herdtfelder, 103 N. Y. 307 , 8 N. E. Rep. 526, it was said: “The fact that the fraudulent grantee is one of the executors furnishes no insurmountable obstacle. If she should refuse to restore the lands to the estate, she should be removed from her office of executrix, and then the remaining two executors could, under the act of 1858, disaffirm the conveyances of the real estate, and bring an action to set them aside; or the two executors could commence the action, making the executrix a defendant, and in such an action obtain for the estate the relief demanded. If the two defendants refused to commence the action upon the application of the creditors or some of them, they could be compelled to commence it by an order of the surrogate, who has ample power to that end, under section 2481 of the Code.”

In Harvey v. McDonnell, 113 N. Y. 530 , 21 N. E. Rep. 695, it was said: “But the administrators do not avail themselves of the power given to them by statute. It was their right and duty to do so. They have been applied to, and refuse. Is the creditor, therefore, without a remedy? Clearly not. Upon the face of the complaint, it is apparent that the administratrix has an interest adverse to the creditors of the estate. They call for property which she claims to own in her own right, and which she refuses to apply upon the debts of her intestate. These circumstances require an exception to be made to the general rule which forbids an estate or its management to be taken from the hands of those lawfully intrusted with it; for it is equally well settled that where such parties are either in collusion with one holding the property alleged to have been fraudulently transferred, or where, as in this case, it is actually claimed by them, or the trustee unreasonably refuses to sue, the creditors, or other persons interested, may themselves bring an action for or reclaim the prpperty fraudently transferred, making the transferees and the trustee parties. 1 Story, Eq. Jur. § 423; Dewey v. Moyer, 72 N. Y. 70 ; Bate v. Graham, 11 N. Y. 237 ; In re Cornell, 110 N. Y. 351 , 18 N. E. Rep. 142; Bank v. Leggett, 51 N. Y. 552 . In such a case the creditor stands in the place of the trustee, and it is immaterial that he is not a judgment creditor.” In Lore v. Dierkes, 51 N. Y. Super. Ct. 157, it was said: “Although the instrument may be fraudulent as to creditors, the next of kin or their representative cannot avoid it. The representative of the next of kin, or rather the administrator, avoids it in behalf of creditors. Such an avoidance cannot result in favor of those for whom it cannot be avoided, but against whom it is vested.” If the bond and mortgage which were assigned by Symonds to the plaintiff were the property of Moulton at that time, it may be said upon the assumption that he consented to the assignment, as the evidence seems to indicate he did; that he, if living, could not be heard to question the respondent’s ownership to the same. In Phillips v. Wooster, 36 N. Y. 414 , it was said: “So that, if the money paid was the debtor’s, as he now insists it was, and the conveyance to the wife, therefore, fraudulent as against creditors, it was not fraudulent as against him, for he was not only consenting to the act, but himself performed it.” In Renfrew v. McDonald, 11 Hun, 258 , in speaking for this court, Talcott, J., said: “The recipient of property with intent to defraud creditors possesses the intimacy and, confidence of the fraudulent debtor, and advises the attempted fraud, and consents to be made the instrument thereof. To allow the grantor in such a case to set aside the grant, and be restored to all he parted with for the illegal purpose, would be to afford great encouragement to future attempts of that character.”

5. If the bond given by the administratrix upon her appointment, or the new bond given by her for $20,000, was irregular or “inadequate in amount,” or the sureties therein were insufficient, a remedy is provided therefor in section 2597, Code Civil Proc. Persons interested in the estate under such circumstances may present a petition to the surrogate stating the insufficiency of the sureties, “or that the bond is inadequate in amoutit;” “praying that *726 the principal in the bond may be required to give a new bond, in a larger penalty, or new or additional sureties, as the case requires; or, in default thereof, that he may be removed from his office, and that letters issued to him may be revoked;” and it is further provided that, when the bond is given by an administrator, “the petition may.also be presented by any creditor of the decedent.” Thereupon, if it appears to the surrogate that there is reason to believe that the allegations of the petition are true, he must cite the administrator to show cause why the prayer of the petition should not be granted. Section 2598, Id., provides for the surrogate’s hearing the allegations and proofs of the parties, and that, if he finds that any of the objections are valid, “he must make an order, requiring the principal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surrogate fixes, and directing that, in default thereof, his letters be revoked.” We think these sections provide ample remedy in a case where the surety “is insufficient,” or where the bond is “inadequate in amount.” Although the appellants claim that the bond was defective in that it was inadequate in amount, and that the sureties were insufficient, and that one of the sureties was incompetent, they did not seek the remedy prescribed by the sections just alluded to. Having omitted to seek the remedy prescribed by the sections, we think they were not in a situation to insist, for either of the causes mentioned, on a removal of the administratrix under section 2685, Id.

6. If the administratrix “failed to return an inventory, or a sufficient inventory, the appellants had a remedy therefor under section 2715, Id. If an order under that section had been obtained, and the administratrix had “ willfully refused or without a cause neglected to obey” it, such refusal would have furnished ground for her removal, under subdivision 3, § 2685, Id.

7. Appellants have taken multitudinous exceptions, which are found distributed throughout the case presented to us, to rulings of the referee in receiving and in rejecting evidence; to the rulings of the surrogate in receiving or rejecting evidence; the conclusions of fact found by the surrogate; to refusal of surrogate to find certain facts; to refusals of the surrogate to find certain conclusions of law; and to his findings upon certain questions of law. Fortunately, we need not protract this opinion to the extraordinary length that would be required to discuss each of these exceptions in detail. We have carefully looked at all of them, and we are of the opinion that no errors were committed in receiving or rejecting evidence which make it apparent to this court “that the exceptant was necessarily prejudiced thereby.” Id. § 2545; Brick v. Brick, 66 N. Y. 144 ; Horn v. Pullman, 72 N. Y. 269 ; In re Ross, 87 N. Y. 514 ; Snyder v. Sherman, 88 N. Y. 656 .

This court having the power to decide questions of fact which were before the surrogate, as we held in Re McGraw, 45 Hun, 354 , affirmed 111 N. Y. 66 , 19 N. E. Rep. 233, in the exercise of that power we are of the opinion that the surrogate in the discharge of his official duty, and in applying his judicial discretion to the casé before him, having regard to all the aspects thereof, properly reached the conclusion evidenced by his order refusing to remove the respondent from the office of administratrix -of the goods and chattels of David Moulton, her deceased husband. We are of the opinion that the several orders brought up by the appeal of the appellants should be sustained. Decree of the surrogate of Oneida county refusing to revoke letters of administration to Emily A. Moulton, and intermediate orders, affirmed, with costs against the appellants personally. See In re West, 40 Hun, 297 . All concur.

Rev. St. N. Y. pt. 2, c. 6, tit. 2, art. 2, § 27, marg. p. 74.