Hood v. Hood

The decree prayed for must be granted. The executor has been guilty of a flagrant violation of his duty and the facts established clearly bring the case within subd. 2 of § 2685 of the Code. By violating the plain direction of the will, to invest the funds on bonds and mortgages in the State of New York, he, by purchasing real estate in the State of New Jersey, has caused a loss of more than one half of the large fund on hand for proper investment at the time of the accounting in 1869. As a consequence of this misconduct, those entitled.to the fund have thus far been unable to obtain their shares of it; and the widow is suffering for want of the income, provided for her by the will, which is unjustly withheld.

The fact that an action is pending in the Supreme court, in which, among other things, judgment is asked *586for the removal of the executor, cannot, I apprehend, affect the jurisdiction of this court in the premises. That action, it appears, was commenced in 1878, and is still pending. Of course, it is impossible to know when it will be determined, and, if the executor’s counsel is correct in supposing that to be a bar to this proceeding, then the legatees are left, all these years, without other remedy. It has been repeatedly held, and is well settled, however, that Chancery (the Supreme court) has no power to remove an executor (Redf. Law & Pr. Suit. Courts, 357; Perry on Trusts [2nd ed.] § 281; Wood v. Brown, 34 N. Y., 339; Quackenboss v. Southwick, 41 id., 117). The Surrogate issues the fetters, and the statute clothes him alone with power to revoke them, and points out the mode of its exercise, It is a duty imposed upon me, the performance of which I cannot escape, if I would.

It is by no means an uncommon thing for executors, and others acting in a fiduciary capacity, to be led into wild speculations, in the hope of gain, in manifest violation of the duties of the trust, and in nine cases out of ten, perhaps, they encounter disaster, to the ruin or injury of the beneficiaries. Here the executor has “ wasted” the assets in his hands, to the extent of about $30,000 ; he has “ improvidently managed ” the property committed to his charge, and his letters should be revoked in order that the destitute widow and her injured children may take such measures of redress, consequent thereupon, as the law permits.

Decree accordingly, with costs.