In re the Estate of Conkling — 15 N.Y. St. Rep. 748

Majority

p. 748

Matter of the Estate of Daniel H. Conkling.

(Surrogate’s Court, New York County,

Filed March 16, 1888.)

Headnote

Surrogate’s courts—Distribution op estates.

Where the law requires the surrogate to direct an ancillary executor to remit assets of an estate, to a prohate court of another state the fact that the property will come to the hands of a person inexperienced in business does not give him any discretion in the matter.

F P. Bellemy, special guardian of Hope H. Conkling; Smith T. Fursman, for Daniel Robinson, ancillary executor; W. H. Holbrook, of counsel.

—Whatever my personal feelings may be in respect of the wisdom of entrusting this large estate to the absolute control and management of this young woman, I am of opinion that it is clearly my duty to grant her motion directing the ancillary executor forthwith to remit the personal estate, the assets of the same for which he has herein accounted, to the probate court of the district of Bennington, in the state of Vermont.

The only question I wished discussed further by counsel, as I stated on the argument, was whether I really had any discretion which I might properly exercise. Considering the single point, to wit: the age of this petitioner, I am not persuaded by the able briefs submitted by the counsel of the executor and a further consideration of the matter, that I have any such discretion. Miss Conkling is beyond question, domiciled in Vermont. I have no right in law to put my individual personal judgment against the provisions of the organic and statute law of her own state under which she, is to-day entitled to this estate. If I could do this, I might with equal right defy the laws of our state and be

p. 749

cause of my personal opinion that a young woman of twenty-one is too inexperienced to have the control of a vast fortune, refuse to decree distribution thereof. Discretion vested in me does not in my mind amount to the right of repealing existing laws; and to deny this motion would be equivalent to the repeal or defiance, of the constitution and laws of Vermont.

The report of the referee must be confirmed. Let an order be submitted for settlement under the rule.