Waterbury evening Democrat. [volume] (Waterbury [Connecticut]) 1903-1917, 1904-04-16
VICTORY FOR BRYAN,
IS STILL EXECUTOR
Attempt to Remove Him from the Bennett Estate Fails
Judge Cleaveland in the Probate Court OF New
Haven Renders Long Opinion Showing Mr. Bry-
ans Rights in the Case.

New Haven, Conn, April 16.A de-
cision denying In effect the application
for the removal of William J. Bryan
as executor of the estate of the late
Philo S. Bennett was rendered to-day
by Judge L. w. Cleaveland, in the pro-
bate court. The application was
brought by counsel for Mrs Grace Imo-
gene Bennett, the widow, and Other
residuary legatees, on the ground that
Mr. Bryan was acting contrary to the
interests of the estate. The decision
sustains demurrer fled by Mr.
Bryan's counsel and practically denies
the application. 1t is expected that the
matter will now go to the superior
court on appeal
The text of Judge Cleaveland's decis-
ion is as follows:
This is demurrer to an application
by the residuary legatees for the re-
moval OF William J. Bryan as executor
OF the will Of Phflo s. Bennett and the
revocation OF his letters testamentary
on the ground that his appeal as an In
diyidual and as trustee from the decree
OF this court refusing to incorporate SO
called ''sealed letter" as part Of the
will, is inconsistent with his duties as
executor of said will. It il also
claimed that by his suit as executor
for the construction of the will he is
unnecessarily delaying the settlement
OF the estate.
The record shows that Mr. BRYAN has
not appealed from the probate of any
portion Of the will admitted to pro-
bate by this court. He merely appeals
from a decree excluding what he
claims Is also a part of the will.
The twelfth clause of the will as es-
tablished by this court is as follows:
II give and bequeath unto my wife,
Grace Imogene Bennett, the sum Of
$4,000, in trust, however, for the pur-
poses set forth in a sealed letter which
will be found with this will"
This clause by itself is certainly am
biguous, and Mr. Bryan claims that, in
seeking by his appeal to have incor-
pOrated into the will. the sssealed let
teri he, so far from attacking the will,
or assuming position of hostility to
1t, is attempting to remove that am
Equity.
The question presented by this de-
murrer Is substantially this: Assum-
ing the possibility that the letter so ex-
cluded by this court may be finally
incorporated into the will as a result
of proceedings in the appellate courts,
Is it so that this could not be accom-
lpished except by defeating Mr. Ben
nett's express direction in the will that
his estate shall be settled by Mr. BRYAN
as one of his executors? In other
words. no one except Mr. Bryan is like
Iy to be interested to test this question
in the courts, and If to test it involved
Mr. Bryan's resignation or removal,
the anomalous result would be that.
even If our higher courts ruled that the
letter should be treated as part Of
the will. this would not restore the ex
ecutorship to Mr. Bryan. and so even
the courts in that event could not fully
carry out Mr. Benefits wishes, which
would only be effectuated by allowing
Mr. Bryan to act as executor.
There is nothing to indicate that it
w.s Mr. Bryan's duty to resign as ex-
ecutor and thus desert the trust con
ferred upon him by Mr. Bennett, and it
cannot be the law that his duties ms
executor involve the waiver of his
right to have his claim as legatee
passed upon by the court of last re-
sort in this state.
The precise question raised by this
application has, so far as appears from
the cases cited In the briefs of coun- !
sci on either side. never been raised.
and in the absence OF clear authority
requiring the removal of an executor
under the circumstances of the case it
Is the opinion Of this court that Mr
Rennett's choice should not thus be de
feated.
The statutory grounds for removal
of an executor in this state general
statutes. section BID, are incapability
of executing the trust, neglect to per-
form the duties thereof or waste of
the estate in his charoe.
After careful consideration OF the
claims of the applicants, this court is
of the opinion that the facts alleged
in the application do not constitute suf-
ficient ground for Mr. Bryan's removal.
The demurrer is sustained and the
application dismissed.