#### Matter of the Intermediate Account of Clarence G. Carr, as Executor of and Trustee Under the Last Will and Testament of John T. Carr, Deceased.

(Surrogate’s Court, Saratoga County,

January, 1910.)

Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels—Acquiescence —Consents and permissions.

Trusts: The trustee, appointment, qualification, resignation and removal— Bonds and obligations — Bond of testamentary trustee — When to be required: Execution and administration of trust — Investments—Assent of beneficiary.

Where, pending a hearing upon a proceeding for the judicial settlement of the accounts' of an executor and trustee, it was agreed by the parties in interest that the executor and trustee who was a non-resident might continue investing in foreign real estate and that he might hold certain bank stock for five years from the date of the agreement, the beneficiary of the trust fund who at that time received an advancement is bound by the agreement and is thereby estopped from urging objections to the account that the investments in the foreign real estate were improper and illegal and that the executor and trustee should be charged with the market value of the bank stock instead of its par.

Where a will contains no express provision that said executor and trustee may act without security, but no objection was made to the granting of letters testamentary on the ground of Ms non-residence, he may, under sections 2638 and 2815 of the Code of Civil Procedure, as testamentary trustee, be required to file security in a case where as executor he. could not be removed for failure to give it.

But where the executor as trustee has not possession of the share of the estate bequeathed to Mm as trustee until after the death of the life tenant, he should not be required to give security until the trust fund comes to him as trustee after the entry of a decree settling bis accounts as executor and directing payment of legacies.

Proceeding upon the account of an executor and trustee.

Rockwood, McKnight & McKelvey, for Lora W. C. Lowe.

Slade, Harrington & Goldsmith, for Clarence G. Carr.

*112Ostrander, S.

John T. Carr died August 25, 1889. His. will was probated September 17, 1889, and letters testamentary were issued to Clarence G. Carr. A decree settling his account was made September 8, 1897.

February 18, 1901, Lora W. 0. Lowe filed a petition to require said executor to render a further account of his proceedings as executor and trustee under said will; and, on December 10, 1901, he filed such account which was settled on that date.

June 12, 1905, said executor filed his petition for a voluntary intermediate judicial settlement of his account, and therewith filed his account, to which said Lora W. C. Lowe filed objections.

Pending the hearing upon this proceeding, an agreement was entered into between said Clarence G. Carr, Antoinette S. Carr, Carrie Carr and Lora W. O. Lowe, that Clarence G. Carr pay to Lora W. >0. Lowe $3,500 out of the trust fund, as an advancement to her, which, together with interest thereon at four per cent, per annum, should be taken from any sum thereafter due her; and that no objection would be made by any one to this payment before it fell due to her, or to its possible invalidity; and that said Lora W. C. Lowe would not ask for further advancements during the life of said Antoinette S. Carr; and she assigned to said Clarence G. Carr all her interest in said trust fund as collateral for repayment of said $3,500 and interest, and among other things agreed “ that she will not interfere with the future management of said estate or ask for legal accountings, provided that her rights in the same are not jeopardized in fact, and a sworn statement and accounting of the estate is made to her in the month of January of each year.”

It was also agreed that said executor and trustee might continue to invest the funds of the estate when necessary in first mortgages on improved real estate in Minneapolis, Minn., and elsewhere, the same as was done by said John T. Carr in his lifetime and has been done subsequently by said Clarence G. Carr, and that he might hold for five years from date (July 20, 1905) stock of the First National Bank.

October 5, 1906, a decree was entered settling the account *113of the executor, showing a balance in" the hands of said executor of $30,322.99 “ to be by him and the said Antoinette S. Carr, the widow, and the said Clarence G. Carr as trustee of Lora W. 0. Lowe under the terms of the will, managed, invested and controlled according to the terms of said will.” 1 On August 12, 1909, Lora W. C. Lowe filed her petition to compel said Clarence G. Carr to render and settle his account as executor and trustee. 1

October 9, 1909, said Clarence G. Carr filed his account as_ such executor and trustee. October 12, 1909, Lora W. C. • Lowe filed unverified objections to said executor’s account of his proceedings as executor and trustee, etc., and claimed ¡

*First.*That the “ executor ” should be charged personally. with three mortgages aggregating $2,400 upon property in Minnesota, unless such investments were made prior to mail-; ing verified statement January 25, 1906, to her attorneys, for ^ the reason that the investments were on property outside Yew^ York State and not legal investments under Yew York laws.,

*Second.*That the mortgages should be converted into cash and invested in securities under Yew York laws.

*Third.*That the executor should be charged market values instead of par value of First Yational Bank stock. ;

*Fourth.*That the executor should be charged with interest on $2,031.50, cash on hand, and required to invest it. *\*

October 12, 1909, Lora W. C. Lowe filed her petition, alleging herself interested in said estate and that Clarence G. Carr is the acting executor and trustee under said will, and has been such for many years, and is not a resident of this State, but resides at Minneapolis, and has no office in this State, and that the will contains no express provision to the effect that Clarence G. Carr may act as executor and trustee without giving security; that he has $13,709.51 in personal property (besides thirty-five shares First Yational Bank stock) all outside Yew York State, and prays that he be compelled to give security. '

From the evidence it appears that Clarence G. Carr has resided in Minneapolis since 1882 and keeps the personalty there; that he rendered a sworn account or statement of the estate to Mrs. Lowe by sending same to her attorneys in Jan*114uary, 1906, but had not- furnished any account since then, because the attorneys had informed him, in February, 1906, that they did not know her address, but would furnish it to him, and had never done so, and that he did not know her address; that all the securities on hand were on hand at the former accounting; that of the inventory $10,000 was real estate in Saratoga Springs; that the executor owned several pieces of improved realty in Minneapolis and was personally responsible ; that of the estate under the will after death of Antoinette S. Carr, his mother, executor was entitled to one-third individually ; Caroline Carr to one-third and Clarence G. Carr as trustee for Mrs. Lowe one-third, subject to deduction of $3,500 under the agreement.

| After giving a legacy of $1,500 to Caroline Carr, the will gives to Antoinette S. Carr, widow, use of all the remainder during her life in lieu of dower, and then proceeds: “ *Third,*I give, devise and bequeath all the rest, residue and remainder of my estate *after such use as aforesaid by my said wife and at her death*as followsone-third to Clarence G. Carr, one-third 'to Caroline Carr, and one-third to Clarence G. Carr as trustee for Lora W. C. Lowe, and others.

| Accountant urges that, by the agreement of 1905, wherein Mrs. Lowe agreed not to interfere with the future managejment of the estate or ask for accountings unless her rights were in fact jeopardized, she is barred from taking this pro- ■ céeding. But this was upon condition that he render to her a verified statement and accounting of the estate in January of each year. This he has not done since 1906, and he assigns as a reason that he did not know her address and that she made no demand upon him for it. He has not stood upon 'this contention, but has filed his account pursuant to the 'prayer of her petition, and it is not necessary to pass upon ¡this contention.

| The objection that the mortgages on Minneapolis property ¡were improper investments, because on property without the i State, and the objection as to the Citizens’ Bank stock which | is still held by the executor, are met by the agreement of 1905, ¡in which contestant expressly agreed that such investments I might be made and that such bank stock might be held until *115July 20, 1910. The condition for annual statements attached to the clause of the contract providing that Mrs. Lowe would not call for accountings if statements were rendered her does not affect the other clauses of the contract (Bogardus v. New York Life Insurance Co., 191 N. Y. 328— 335); and, as to the other provisions, said contract stands, and the contestant is hound and estopped by it from urging these objections to the -account.

As to the objection that the executor should be charged interest on the $2,031.50 cash on hand, there is no evidence as to when he came by it, nor anything showing any neglect to reasonably invest it. I think the objection to the account should be overruled.

We come then to the question whether security shall be required of Mr. Carr. He was a non-resident of the State when letters testamentary were granted to him in 1889, and no objection was made on the ground of non-residence until this time. He appears to be financially responsible, and no disqualification is shown against him, unless it be his non-residence. This application is not to remove the executor, as contemplated by section 2685 of the Code of Civil Procedure ; but, if it were, under the doctrine of Postley v. Cheyne, 4 Hem. 492, the facts would not warrant his removal under that section in default of security.

But this application is made under section 2815, Code of Civil Procedure, which provides that a person interested in the execution of a trust may present, to the court any fact respecting a testamentary trustee “ the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as executor in a will, would make it necessary for him to give security in order to entitle himself to letters,” and pray for a decree requiring the trustee to give security, etc. Hnder section 2638 a person named as executor against whom there is an objection of non-residence may entitle himself to letters by giving a bond, etc. Hnder these provisions a testamentary trustee may be required to file security in a case where an executor could not be removed for failure to give it.

But, under the will in this case, the legatee Carr, as *116trustee, has no possession of the share of the estate bequeathed to him as trustee, until after the death of his mother. There has been no separation of the estate for the purpose of these legacies. It is all in the hands of Carr as executor, and there has never been any receipt of it by him as trustee and cannot be until the death of Mrs. Carr. When a decree shall be made settling his account as executor and directing payment of the legacies, a petition may be properly made requiring him to give security for the amount to come into his hands as trustee; but, until the trust fund comes to his hands as trustee, I do not think he should be required to give security for it, in view of the burden which would be imposed upon the fund in carrying such a bond for perhaps several years before receipt of the fund by him, and in view of the fact that no disqualification or irresponsibility is shown.

The objections to the" account should be overruled, and the prayer of the petition for security should be denied.

Decreed accordingly.