The New York herald., 1922-12-23
Gould's RenovaI
as Executor Is
Upheld in Court
Action in Relieving Him From
Serving Under Fathers
Will Confirmed.

The Appellate Division OF the Su-
preme Court yesterday affirmed a de-
cision of Justice Whitaker. removing
George J. Gould in July. 1919. as trus-
tee and executor Of the 100000 es-
tate of his father, Jay Gould. and sus-
tanned Justice Delehanty in restraining
Mr.. Gould in May from pressing an
action in Surrogates' Court for the
paymen, OF $644.9O4 income alleged to
have been withheld by his brothers
and sisters as co-trustees.
The Appellate Division was divided
on the removal of Mr. Gould as trus-
tee. Justice Alfred r. Page, who wrote
the majority opinion. held that Mr..
Goulds official acts In handling the
estate showed he was IAN unfit person
to discharge the duty of trustee;
that he had personally profited largely
out. Of and at the expense Of the es-'
tate; that he had not the slightest
conception Of the fiduciary duty Of his
position"
Justices Walter Lloyd Smith and Ed
ward r. Finch, in dissenting, held that
Mr.. Gould should have been suspended
and not removed as trustee and executor
pending the outcome Of an action ne
brought for an audit and approval OF
his accounts.
Flaw Seen I'm Gould's Denial.
OF the. charge that Mr.. Gould 'habitu-
trfa nf q
estate to his own private interests" JUS
Ice Smith wrote:
while Gould denies this charge and
swe3rs that all transactions of which
complaint is made were executed by him
in good faith and strict fidelity to the
obligations of his trust, facts are
charged in the moving affidavit which
are not fairly met by such general de-
NAL. He was not authorized to mtngle
trust funds with his own. He might
easily in his stock account have adopted
another name, as he did in other in
stances, and have kept those accounts
separate.
There would then have been no op-
portunity for his claiming the benefit
of a profitable investment and placing
upon the estate the burden Of an un-
profitable investment Gas alleged). The
law does not permit a trustee so to
mingle the trust funds with his private
funds as to create such an opportunity.
1t matters little whether he availed
himself Of that opportunity at the ex-
pense of the estate.
Question of short Sales.
TT is denied on the part of Gould
that these matters In which they were
cosnmingled were speculative accounts.
They were called short sales. 1t is
claimed however, that these short sales
were not what was ordinarily known as
short sales upon the Street, but sales
for delivery at a later date, and that
they were made for the purpose of get
ting rid Of stock of the Missouri Pacific
Railroad, which stock he should even
tualy have sold. But short sale Is
always. to an extent. speculative"
When Justice Delehanty heard argu-
ment on the application for an injunc-
tion In April 1t was alleged that Mr..
Gould owed the estate more than $4,000
900 because of losses sustained on ac-
count Of his acts. Ii was charged also
that In an accounting before referee
the estate could prove losses aggregat-
ing S20,000.000.
John w. Davis. formerly Ambassador
to Great Britain, and William Wallace.
Jr.. represented Mr.. Gould on appeal.
Edgar 7. Bracket. formerly Senator;
J. Arthur Leve. George ]. Gillespie and
Harold A. Content appeared for Mr..
Gould's adult children. Ex-Judge Sam
uel Seabury. William Nelson Cromwell.
Walter b. Walker, Frederic r. Coudert.
Philip L. Miller and Howard Thayer
Kingsbury argued for Edwin Gould and
Gtr-