#### In the Matter of the Judicial Settlement of the Account of Charles H. Boyer and Frank W. Boyer, as Executors and Trustees under the Last Will and Testament of Amelia S. Sherman, Deceased, Pursuant to Decree of this Court Removing Said Persons, Etc.

(Surrogate’s Court, Kings County,

November, 1911.)

Contempt: What constitutes — Disobedience — Order to pay money — Inability to comply as excusing disobedience: Punishment — Imprisonment — Discharge.

Where a testamentary trustee has been removed and is charged in the final decree with a sum of money which he is directed to pay ' to his successor, his financial inability is no answer to a motion to punish him for contempt for his failure to obey the decree; but the question of his financial inability to comply with the decree must be determined upon a motion for discharge from imprisonment, under section 775 of the Judiciary Law.

*Semble,*where a trustee in such case seeks to be discharged from imprisonment on the ground of- his inability to pay the amount directed by the decree; he' must show that he has done whatever he could to obey it; and it is not enough to urge that it would do no good if he should try to obey.

Motion for the commitment as for a contempt of a trustee who has been removed.

Wingate & Cullen (Conrad Saxe Keyes, of. counsel), for People’s Trust Company, for motion.

Blandy, Mooney & Shipman (Joseph S. Frank, of counsel), for Adele L. Ohilvers, uniting in motion.

William B. Hurd, Jr., for Charles H. Boyer, opposed.

Ketcham, S.

This is a motion for the commitment as for a contempt of a trustee who has been removed and who has been by final decree in accounting charged with the sum of *330$57,799.32, which he has been directed to pay to his successor in the trust.

The decree is for the payment of money; and the securities in which the trust fund has been improperly maintained have been left in the hands of the removed trustee in order that they might aid him in raising the moneys with which to satisfy the decree. It is claimed in his behalf that the court, may acquit him of contempt and withhold its warrant of • commitment if it shall be found that he is financially unable, either from his individual estate or from the securities above mentioned, to discharge the duty laid upon him by the decree.

There is some support for the suggestion that the court may, in its discretion, acquit a defaulting trustee of contempt, when it shall appear that if charged in contempt he will be able to purge himself by showing actual inability to comply with the decree. Doran v. Dempsey, 1 Bradf. 490; Cochran v. Ingersoll, 13 Hun, 368; Matter of Battle, 5 Dem. 447. In each of these cases, and in the decisions therein cited, however, there was something more than mere inability to move the court to compassion; and it is asserted by late and controlling authority that no discretion, if it .exists, is to be exercised to relieve the defaulting party solely because of his pecuniary helplessness. Schmohl v. Phillips, 138 App. Div. 279.

In the case last cited, a defendant, commanded by a judgment to remove refuse material that he had placed upon the plaintiff’s premises, asserted his financial inability .to do the thing commanded, and, on that ground alone, sought to escape á finding of contempt. It was there said: “ The only answer to the motion was defendant’s financial inability to comply with its terms. The motion could not be defeated in this way. Whether the defendant should remove the materials referred to and restore the land to the condition in which it was at the time he leased -it was finally settled and determined by the judgment, and it could not thereafter be changed or modified except by an appeal o'r by an application in a proper action or proceeding to set it aside, or to the justice presiding at the-trial to modify it. The order appealed from, in effect, modified the judgment by striking therefrom the provision referred to, since the plaintiff now can obtain no relief under *331that provision. The General Buies of Practice, as well as the orderly administration of justice, do "not permit a judgment to be destroyed in this way. . The motion should have been granted,' and the question of defendant’s ability to comply with it determined upon his motion to he discharged from imprisonment as provided in section 775 of the Judiciary’Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35). (Wheelock v. Noonan, 55 N. Y. Super. Ct. 302; Ryckman v. Ryckman, 34 Hun, 235; Matter of Strong, 111 App. Div. 281; affd., 186 N. Y. 584.)”

For the present discussion, no difference is seen between the delinquent defendant in a judgment and the delinquent trustee in a surrogate’s decree. But while, if necessary, it would be held that the court is without discretion to determine upon this motion the question of the trustee’s ability to conform to the decree, the same result would follow if such discretion were exercised. This trustee is not wholly powerless-to obey. He does not remove the probability that, if he should properly and zealously avail himself of resources and opportunities within hi® reach, he could pay some part of the judgment againsfehim, and thus qualify his attitude of contumacy; nor is it shown that the securities in which the estate was invested, and of which he has the right of disposition, would not, at least in part, discharge his default, if converted into cash. A peculiar form of his recalcitrancy is that he does' nothing toward obeying the decree, and would seek to escape the penalty of disobedience upon the pretense that it would do no good if he should try to obey.

The motion must be granted.

Motion granted.