The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-04-08

uahagpv Fato % Q Ceaseseaaious M
Aeeln9 On Good Pain.

ADAN8 - 49, EgaaBs
That an executor who acts under . WI
not zee prObaasd does 30 &C hh crave peril
h the harpol Of q recent dorAsion of tho
Court Of AppeaIs IN this State in The case
Of DOdd against Anderson o. administrator.
Judge Werner. speaking for the united
bench. aays:
70 h an aaelsas legal pr0vsrS mat hard oAseO
mahs oa6 Law Tas eass 81 bar apSiy Hnas1rsssa
ne esinpaaaon - overlook or ignore nard legal
pTtncipiss when they are opposed u persuasive
eauit1sa. Ths plaintiff IN the EFFORT % carry out
the sslsmnly Expressed wishes % his deeeaasd
uncls decided 70 aecept ne oehoe Of executor for
uhscA he had been named. and not only onsTed
sor probate ne paper purporung n b W.T.
bas waged 90 active. pFulooged and Expansive
oonass' 10 sstaolish its validity Al this ne did
not fof hlmnnlf bus for othsrA and In doing u
Ne made laFrs sapeadimres which win have 70
De borne BY him unlssa ne BE- reimbursed out
Of ne estate. while such circumstances aules
naturally appeal N ne Individual sense Of justice
thsy onnnot % permitted 70 tnaoenee Judicial
ascssasa uslsss 'hey are supported by legal pTin'
dplea
The court overthrowa the decisions % the
Appellate Division and Special Term and
nustains the demurrer 20 the complaint on
tho ground that n failed TO set forth cause
% action. These facts are Of interest.
The testator died In 1903. leaving . las,
will sxscutsd In conformity with all the
statutory requirements. The plaintiff. who
was designated as one % the executors
therein. offered the will for probate in the
surroeatS's Court. Two Of the deceden''s
children Immediately began contest. which
resulted In the denial OF probate on the
ground that the testator o. the time n the
execution Of Ihs instrument was the victim
Of certain insane decisions which inrapaci-
IN ' IN A hls sont 70 as,sin n. VII spsn;
Rsnts After the relectlon % the paper
sdmlHistrsfor Of the estate. Then the
plAintiH presented his claim. which was
si:.ilo.eS and upon hi. Lain ne sal, =,
interest under the viii, acted in perfect good
and was expressly following the ins,rlc;
lions Of tho toatator 10 oder II for prOhate.
The SSEIt q ApEsals tSTssf hHd ss .Ss the
account the SiEs Of the estate and the MAJ ure
Of the contest in the Surrogate Court
vas sustained in the lower and appellate ]
courts h that . psrson who u named a.
ss csroS s1s N Dsss5 70 s e Be IN
vance Shethar he YIN renc1nes the trust /
Which has been rspoeed IN him or aecep. |
costs and sspensss q contest Il the paper
10 Judicially declared TO be Invalid A. q 1
me, a,.s :" s s :s NJ 600 % . .S ana
the attempts TO probate the win 10 for the /
beneGt Of the estate. being made elthsr /
upon the express OF implied direction Of 4
the testator and implying q coryelattve |
promise that the estate shah reimburse
the exec,ator.
Judge Werner observes that this theory |
lille supported by respectable authority |
In number Of iurtsdicttons, n neverthe- 1
les fallacioas and deceptive: that hoNever /
10 must fall before certain In |
ezorabls laws governing decedents' estates. |
Among thee laws are the principle. that l
there can DO no eEecutor whsrs there u I
no will that without q will no letters testa- /
nentary can issuo that until letters tesla
nSntAry or OF administration are issued |
here can be no legal Representative. and
hat Q person named - executor In a paper
obligation to accept.
The court hnds support for iss contention
n fee decisions IN other state courts.
including those Of Ohio. Connecticut. South
arollnA, Mississippi. Pennsylvania and
Illinois. Il makes q clear distinction between
hOss cases In which the will was never
proved and In cases where the probate
sas reversed on appeal. granting certain
lights In the latter class Of cases 10 depoSsd
,NecutoTa. In conclusion Judge Werner
makes the following suggestion
The result 70 which we are brought bv th-se
onstdsTanrns II extremely unfort'tna'e IN such
cas- this unrrr In good faith Arcrpts a
rust rrpns-d IN him By one Who attempts o. make
VII bat ne remedy. ~ one l. drSlrabir. must
= provided BY the Legislature ard NOT b. The
ourtN