#### Matter of the Probate of the Last Will and Testament of Caroline Remsen Gihon, Deceased.

(Surrogate’s Court, Westchester County,

April, 1899.)

Temporary administrator — Hot ousted, pending an appeal from a decree of probate, where the preservation of the estate does not require it

Pending an appeal from a decree admitting a will to probate, a temporary administrator will not be ousted, at the instance of executors named in the will who claim that letters should be issued to

* Received too late for insertion in proper place.— [Reporter. *627them because the preservation of the estate requires it, where it appears that the temporary administrator has given ample security, that the securities of the estate are not such as fluctuate in value, and that there is no likelihood that they will require presently to be sold and their proceeds reinvested.*

Application by executors for issuance to them of letters testamentary.

0. R. Bovee, Jr., for executors.

Frederick H. Man, for contestant,

Silkman, S.

Objections-were filed to the probate of Mrs. Gihon’s will by her daughter, Mrs. Dale, and pending the trial of the issues raised an application was made by the contestant for the appointment of a temporary ..administrator, for the purpose of securing and preserving the estate.

This application was opposed by the proponents, upon the ground that no necessity had arisen which required the appointment of such administrator.

This court, however, granted|the application of the contestant, and appointed an administrator to secure and preserve the estate, who has given a bond in the sum of $750,000 for the faithful performance of his duties.

The issues raised by the answer of Mrs. Dale to the petition for probate have been tried, and the will has been admitted to probate.

Objections were filed to the granting of letters to Mr. Gihon and Mr. Le Roy, two of the executors named, and pending the hearing of such objections the issuance of letters were stayed. Such objections have been heard and determined, and an order has been entered directing the issuance of letters testamentary. The .executors Gihon and Le Roy, however, were compelled to give a bond in the penalty of $50,000 for the faithful discharge of their duties.

An appeal has been taken from the decree admitting the will to probate, and the security required to perfect the appeal has been given.

This appeal stays the issuing of letters testamentary unless in the opinion of the surrogate manifested by an order the preservation of the estate requires that letters should issue.

*628The executors now apply for the issuance of letters testamentary, upon the ground that the preservation of the estate requires it.

It is not denied, or - disputed,, that so far as the custody of the • éstate is concerned, it is perfectly safe in the hands of the temporary administrator, who has given an ample bond, but it is alleged that it may be necessary to sell. and dispose of certain of the securities which consist largely of stocks and bond's, foi’ the reason as is' stated, the condition of the stock market prevailing at this time, and the conditions which may arise in the future may make it essential and necessary to sell some of these securities for the benefit, -advantage and profit of the estate; the condition- may arise which will call for-prompt-action oh behalf of the executors, and' such action and such protection of the estate can only be secured by the issuance of letters testamentary to the executors' named.

The application of the executors is supported by affidavits ■ of some of - the best financiers in the city of New York, in which they state that a condition may arise from time to time which may call for p'rompt action on the part of the executors in selling or -changf ing some of the securities to the greatest advantage and benefit of the estate. That it is impossible to say that the valuation of the securities will be the same six months hence, and that they believe that the proper protection and preservation- of the estate requires the appointment and qualification of the executors.

If it should become necessary to sell any part of the securities held by the estáte, the provisions, of -law authorizing a sale by the temporary administrator, are sufficient for its protection; but irrespective of this fact, there is nothing alleged in the papers upon which the application is made in the nature of a statement of a. fact from which the court can reach the conclusion which the gentlemen have reached who have made affidavit.

It is not alleged that any single, security is. at all precarious1, should, therefore, be sold, and the moneys -reinvested; on the contrary' it is. alleged by the affidavits in opposition, that the securities are all -investment securities, Or such as are valued, because' of the income regularly derived therefrom, and they are not subject to the fluctuation of what is characterized or known as speculative stocks.

' There is nothing upon which the court can base a .conclusion that the preservation of the estate demands a sale of any of these securities. TJnless it is made to appear that a sale of the securities, or a portion thereof, is advisable and necessary - at the present time, I *629cannot see how the estate can in any way be prejudiced or endangered. If. an emergency should suddenly arise requiring the sale of any security the temporary administrator may be authorized to sell it.

If, however, it should become necessary to sell any portion of the securities, then it might be said that the preservation of the estate demands the presence of executors- who would be authorized to invest, the proceeds, and which cannot be done by the temporary administrator.

' It seems to me, therefore, until occasion arises for a sale of the securities, or some part thereof, and the reinvestment becomes necessary, that there can be no legal basis for the issuance of letters testamentary.

Preservation of the' estate means that the estate shall not suffer ■ loss, either by being intrusted to irresponsible persons, by depreciation in the value of the securities due to retention of. the same, or by failure to properly invest moneys which should be invested under the provisions of the will;

In this case, thé persons interested are' amply secured by the bond of the temporary administrator. There can be no loss in the securities by reason of their retention, because the temporary administrator can always be authorized to sell, and it does not appear that there are any moneys in the temporary administrator’s hands which should be invested under the terms of the will of testatrix.

The application for the issuance of letters testamentary to the executors must, therefore, be denied.

Application denied.