#### Matter of the Application to Revoke the Letters Testamentary of Gesine Engel, as Executrix of Claus Doscher, Deceased, and for Her Removal as Trustee of Claus Doscher, Deceased.

(Surrogate’s Court, Kings County,

November, 1911.)

Executors and administrators — Appointment and qualifications of personal representatives, resignations and removals—Removal or substitution and. revocation or modification of letters — Grounds — Misconduct, negligence or nonperformance of duty.

It is within the discretion of the surrogate whether he will remove an executor for a violation of duty, or even a breach of trust, specified in section 2685 of the Code of Civil Procedure; and he should not do so where there has been no loss to the estate and there is no peril to the fund.

Application to revoke letters testamentary.

Henry F. Cochrane, for petitioners.

Rambaut & Wilson (Charles H. Beckett and Edward H, Wilson, of counsel), for respondent.

*309Ketcham, S.

In this proceeding, brought by three executors for the removal of the fourth, the petitioners insist that, if the surrogate shall find that "the respondent’s conduct has been such as to bring her within the reprobation of either subdivision 1 or 2 of section 2685 of the Code of Civil Procedure, it is not within the discretion of the court to withhold its order of removal.

They cite section 2687 of the Code, as follows: “ * * *. If the objections [made in accordance with § 2685], or any of them, are established to the surrogate’s satisfaction, he must make a decree, revoking the letters,” etc., and they go far to show the mandatory and absolute quality of the direction last quoted, by contrasting therewith the remainder of the same section, which permits the surrogate, in his discretion, to dismiss the proceedings, upon terms, and to allow the letters of the respondent to remain unrevoked where the case is within subdivision 3, 4 or 5 of section 2685.

• Their argument is that, where the context of the statute as to one class of allegations against the executor commands that th'e surrogate, upon proof, must 'revoke the letters, while as to another class he is expressly permitted to exercise a discretion, the provision that the order must be made is intensified by the contrast. This construction, however attractive, is forbidden by authority. Matter of Monroe, 142 N. Y. 484; Matter of O’Hara, 62 Hun, 531; Elias v. Schweyer, 13 App. Div. 336; Matter of Waterman, 112 id. 313; Matter of Thieriot, 117 id. 686, Matter of Burr, 118 id. 485.

These cases make it clear that, although a violation of duty or even breach of trust may be found upon the evidence, the letters should not be revoked if the fund or estate is in no danger of being lost. While some of these decisions do not apply to the duties and limitations of a surrogate under the section considered *supra,*others are directly in point, and they involve an interpretation of that section inconsistent with the petitioners’ claim.

The accused executrix is presumptively able to respond for any default. She has received from this estate alone more than a half million dollars, and there is no suggestion that *310she has dissipated it. Eighty per centum of this estate has been safely distributed.' There is a pending proceeding for an accounting in which three of the executors have submitted their account and in which the respondent may be required to also account.

In that- proceeding, every claim that any of the executors has inflicted loss upon the estate may be determined. In the. meantime, none of the necessary enterprises of the estate need foe halted, and there is no peril to the fund which would justify the removal of the respondent.

The application is denied, without costs.'

Application denied, without costs.