In re Warren

This appeal is from an order made at Special Term denying the petitioners’ application for the removal of the trustees under the will of the late Cyrus M. Warren. We think the disposition of this matter at Special Term was right. The record shows the testator gave his executors certain real estate at Long Island City in trust, to collect therefrom the rents, issues, and profits, and to pay the same to the testator’s widow during her life. Coupled with this provision for the widow was a direction that, in case the income derived from this real property was insufficient to yield at least the sum of $5,000 per year, the executors should add to the income from the real estate sufficient of the income from the rest of the testator’s property to make up the $5,000 required to be paid to his widow. It appears that almost all the testator’s estate outside real property in question consisted of stock in two corporations known as the “Warren-Scharf Co.” and the “Warren Chemical Co.,” which stock the executors were by the will authorized to sell and dispose of. The executors did sell and dispose of this stock with the assent and approval of all the legatees under the will. By this sale and disposition the legatees under the will received in exchange shares of stock in a new corporation formed and known as the “Warren-Burnham Co.,” which company subsequently paid to its stockholders large dividends. To provide, however, against the contingency of the real estate left in trust to the executors not yielding a net income of $5,000, the legatees by agreement placed in the hands of the trustees 503 shares of the Warren-Burnham Company, which was retained

It is argued that the trustees under the will were personally interested as syndicate managers in the success of the reorganization of the Warren-Burnham Company, and as such were to profit as such managers in the reorganization, and therefore should be removed. It is perhaps sufficient to say that four of the five beneficiaries under the trust ask for the retention of the trustees, having confidence in their integrity and business management. In addition, the widow, the chief beneficiary of the trust, desires their retention. Under the circumstances of this case, we think the wishes of the great majority in interest should be respected. We cannot perceive that the interest of the trust estate or of any one of the beneficiaries would be advanced by any change in the management of the trust estate. Nor can we perceive that either of the trustees have acted otherwise than in the best of good faith towards all the parties in interest. To have failed to have become parties to the organization and turned in the whole of the 503 shares of stock pledged to them would probably have resulted in a loss rather than a benefit to the petitioners. , We think the Special Term under all the circumstances properly denied the motion for the removal of the trustees. It is insisted the Special Term erred in deciding the motion without taking proofs. We think this contention cannot be sustained. Where an application by petition is opposed the issues are primarily triable by affidavit. It was unquestionably within the power of the Special Term to have ordered a reference to enlighten its own conscience^; but references upon the disposition

The order appealed from should be affirmed, with $10 costs and disbursements. All concur.