In re Adler's Estate

We think that the learned surrogate wisely exercised the discretion conferred upon iiim by section 2602 of the Code of Civil Procedure in denying this application. It is quite evident that the funds of the estate are not in jeopardy, and that no practical good would be accomplished by subjecting them to the additional control of the appellant. The papers show a lack of harmony between the appellant and her co-executors, but nothing whatever to justify any apprehension of mismanagement, misappropriation, or danger to the estate. The appellant seems to think that the order applied for was substantially her legal right, and that she was not bound to show any special facts or circumstances calling for the exercise of the discretion conferred upon the surrogate by the section in question. At all events, the facts which she did show were entirely insufficient, and even these were either denied or explained. But, in her general view of what is essential successfully to invoke the discretion thus conferred, we think she is mistaken. Section 2602 is new, and it was intended thereby to provide a summary remedy in casés where, prior to its enactment, the surrogate was powerless to interfere. Formerly the only remedy was in equity, and such remedy was limited to cases where mismanagement and misconduct jeopardizing the interests of the beneficiaries under the will was shown. Thus, in Burt v. Burt, 41 N. Y. 46 , it was held that a decree in favor of one executor, requiring his co-executor to place the securities which were in the latter’s possession belonging to the estate in the custody of a bank, and to deposit in such bank all money thereafter collected, to be drawn out only on their joint check, was not authorized by the fact that the co-executor maintained exclusive manual possession of such securities. It may be that under the wide discretion conferred by this new provision the surrogate is not limited to cases within the rule thus laid down, but certainly it is not a matter of course to require such joint deposit. The applicant must still make out a case calling for the surrogate’s interference, and showing that the protection of his rights and interests, or of the rights and interests of .others, require the favorable exercise of the discretion conferred. With the exercise of that discretion we cannot interfere; certainly not unless it is apparent that it has been abused.

Tiie appellant contends that the rules which govern on appeals from discretionary orders of the special term of our own court are equally applicable to appeals from similar orders of the surrogate’s court. This, however, is not the case. It is true that on appeals from the special to the general term of our own court we are bound to review upon the merits all orders resting indiscretion. Insurance Co. v. Tomlinson, 58 N. Y. 216 ; Jemison v. Bank, 85 N. Y. 548 . That discretion, however, is the discretion of the supreme court, whether exercised in one of its branches or in another. It is the same court and the same discretion throughout. But this rule is not applicable