Majority
p. 237In the Matter of the Estate of Hanford Smith, Dec’d. Application of Hanford Smith et al., to remove Trustee. (Surrogate’s Court, New York County, Filed September 20, 1889.)
Headnote
Trustee — Removal of — Dishonesty or improvidence not necessary FOR.To justify the removal of a trustee, it is not necessary to find that he was dishonest, nor that he was improvident in the general sense of that term.
Application for removal of trustee This case was argued and decided with the preceding case.
Dill, Chambers & Seymour, for petitioners; Ovide Dupre, for trustee.
The evidence warrants the findings contained in the report of the, referee, and also the disposition which he made of the requests to find of the petitioner, Hanford Smith.
The provisions of the Code, as well as the cases cited below, show that it is not necessary to find that the respondent was dishonest, although it is not entirely beyond doubt that she was not. Nor is it necessary to find that she was improvident, in the general sense of that term, to justify her removal, but the grounds specified in the referee’s report are sufficient, and compel the court to decree her removal. Code Civ. Pro., § 2817, subd. 2; Estate of Stanton, 18 N. Y. State Rep., 807; Morgan v. Morgan, 3 Dem., 616 .
p. 238
The case of Emerson v. Bowers, 14 N. Y., 449 , referred to by the respondent’s attorney upon the argument, has no application, as the facts relied upon for the removal of the trustee in the present proceeding were not then grounds for removal, and, of course, were not considered. The Code of Civil Procedure has since made them such grounds. See section of Code above cited