Baier v. Baier — 4 Dem. Sur. 162

Majority

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New York County.

Hon. D. G. ROLLINS, Surrogate.

August, 1885.

Baier v. Baier. In the matter of the estate of John Baier, deceased.

Headnote

The fact that an executor and testamentary trustee is “-too busy with his own matters ” to continue in the service is not a “ sufficient reason ”

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for the exercise, by a Surrogate, of the discretion conferred upon him by Code Civ. Pro., §§ 2690, 2814, to permit the former to resign, especially where the beneficiaries of the trust are opposed to such a course.

Petition by Margaretha Baier, an executrix of, and one of two acting trustees under decedent’s will, for leave to resign as such ; opposed by Edward Baier and others, cestuis que trustent.

Chas. Goeller, for petitioner:

Cited Matter of Bernstein (3 Redf., 20).

Chas. Goepp, for Edward Baier and others.

The petitioner’s application to' be relieved from continuing to act as executrix and trustee cannot, within the restrictions of §§ 2690 and 2814 of Code of Civil Procedure, be lawfully granted, unless the Surrogate, in his discretion, shall find that “ sufficient reasons ” exist therefor. The only reason assigned in this petition is embodied in the general allegation that the petitioner is “ too busy with her own private matters, and no longer desires to be busied ” with her trust.

Her counsel supplements this claim for relief by pleading her limited knowledge of the English language and a lack of business capacity which amounts to an inability fitly to discharge her duties. He insists that by her retention in office the estate will be incumbered with a “ needless appendage.”

I find that she had sufficient knowledge of English and of business to claim and receive, under the decrees of October 13th, 1881, and May 10th, 1883, commissions amounting in all to $1,491.76. Her

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petition expressly asserts that the duties that remain to be fulfilled are of a much simpler character than those which have been performed already; and, as her discharge is opposed by the cestuis que trustent, she must continue to play the modest role of needless appendage, until she shows better cause than has yet appeared for being allowed to abandon it.