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Shields v. Shields.

testator, setting forth that such person intends to file objections against the granting of such letters, and stating that he is advised and believes that there are just and substantial objections to the granting of such letters to the persons named as such in the will. When such an affidavit is filed, then the duty of the surrogate is prescribed. In this case, no such proceeding was had; no such affidavit was filed. The-duty of the surrogate was plain; he pursued it and issued the letters. There are certain objections at law, which, if they exist when the will is proved, the surrogate will, as it will be his duty to do, refuse to grant letters testamentary, on the ground of incompetency of the person named, and will issue letters of administration with the will annexed. The statute defines these objections of incompetence to persons as follows:

- 1st. Incapable in law of making contracts, (except married women.) 20. Under the age of twenty-one years. 3d. An alien, not being an inhabitant of this State. 4th. Who shall have been convicted of an infamous crime. 5th. Who, upon due proof, shall be adjudged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidenee, or want of understanding.” (2 R. S. 69, $ 3.)

We are to assume, then, that none of these reasons, not even that of improvidence, existed against the defendant at the time of proving the will and the issuing of letters testamentary. If after such letters have been granted by the surrogate, such executor becomes incompetent by law, for any of the aforesaid reasons, or that the circumstances of such executor are 80 precarious as not to afford adequate security for the administration of the said estate, it is the duty of the surrogate to inquire into the complaint. (2 R. S. 72, $ 18.)

This precarious condition of the executor is the basis

Shields v. Shields.

upon which the plaintiff moves in this case, and it is this question of precariousness which the surrogate was called upon to decide. It was not incompetence; no such charge was made. There was no charge of improvidence accruing since the issuing of the letters; no proof of indiscretion in the management of the estate; no want of exercise of a reasonable judgment; no dishonesty, not even insolvency; she had made no attempt to dispose of the estate, or expressed an intent to do so. What, then, is this precariousness upon which this proceeding is based ? It was not even her poverty. She had a reasonable support for life in the property itself. Though bankruptcy might furnish a reason, poverty does not. The trust of this estate was committed to her; of that, a part of which had once been her own, and intrusted by one who, better than any other, knew her integrity and her capacity, and who had declared her to be an excellent manager; who had helped him to acquire the estate; and in whom he had perfect confidence. If the mere chance that property committed to a trustee might be lost, would render his circumstances precarious, there is not an executor occupying that place that could not be removed. The experience of the world, if appealed to, would demonstrate the truth, that it is not those who have most means in possession that are found to be the safest and best trustees. They are more generally, and doubtless more appropriately, selected from those possessing integrity of character, habits of economy and industry, and having moderate estates, acquired by honest industry. Such persons, it may be said, are in circumstances less precarious than many who possess far greater wealth. The selection of a trustee is the indication of the highest degree of personal confidence; and character, rather than pecuniary responsibility, controls the selection. It would be arbitrary, as well as unjust, for a court to adjudge that a person of sufficient capacity

Shields v. Shields.

in

to make a will, had not sufficient to select a trustee to manage his estate as executor. If such were the views of the

surrogate in this

case, the absence of all adjudication upon, or judicial construction of the meaning and intent of the term precarious, as employed in this statute, then his decision has a basis of good sense to support it. Statutes must have reasonable construction. A construction that would give to the term precarious, as used in this statute, the literal construction contended for, would be impracticable and mischievous. Webster illustrates the meaning of “precarious” by a quotation from Rogers, who says: “Temporal prosperity is precarious." This applies to the case of every trustee. With this illustration for a true definition of this term, the circumstances of every executor are precarious, and he can be removed for that reason. I think in every case, when such a complaint is made, it must depend upon its own peculiar features and circumstances; of which the surrogate is the appropriate judge. It seems to me that the circumstances of an executor are precarious only, within the meaning and intent of the statute, when his conduct and character present such evidence of improvidence or recklessness in the management of the trust estate, or of his own, as in the opinion of prudent and discreet men, endangers its security. There is, it seems to me, no such evidence in this case; nor, in my opinion, is there any evidence that renders the circumstances of the defendant, as executrix, precarious within the meaning and intent of this statute. It was a remark of Lord Hardwicke, “that a trust is an office necessary in the concerns of life, between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, and it is an act of great kindness in any one to accept it. If there is no mala fides-nothing willful in the conduct of the trustee—the court should regard all his acts with a favorable eye."

Lormore o. Campbell.

I have not found in the decision of the surrogate any error that demands the reversal of the judgment. It should be affirmed, with costs.

Judgment affirmed.

(Third DepartmENT, GENERAL Teru, at Elmira, September 6, 1870. Miller, P. J., and Potter and Parker, Justices.]

WILLIAM J. LORMORE and others. vs. John CAMPBELL,

ROSE CAMPBELL and others.

60 62 67 380 15h 13

In an action against husband and wife, brought by judgment creditors of the

husband, to set aside conveyances made by the defendants, as fraudulent, the examination of the husband, taken in supplementary proceedings against bim, instituted by another creditor, is legitimate evidence, so far as it affects

the husband. But neither the testimony, the acts, nor the declarations of the husband can

be used as legal evidence to implicate the wife, or to fix her conduct as fraudulent, or to divest her of her estate. And if such testimony is giren, before a referee, it is his duty, upon the motion of the wife, to strike it ont, if he does not intend to consider it evidence against her. PARKER, J. dis

sented. A finding of fact, by a referee, that conveyances were made with intent to

hinder, delay and defraud the future creditors of the grantor, when the whole case shows that there were then no creditors to be defrauded, is, in

law, simply absurd, or rather, a legal impossibility. Per Potter, J. Our statute of uses and trusts only makes conveyances fraudulent and void as

against the creditors of the grantor at the time of the conveyance. Even though a conveyance be voluntary, it may be upheld as against the sub

sequent creditors of the grantor. Where a wife has an equitable interest in land conveyed to her husband, by

reason of her having paid a part of the purchase money, such interest will be protected, as against her husband's subsequent creditors.

THIS action is brought by the plaintiffs, as judgment

creditors of the defendant John Campbell, to set aside certain deeds of real estate, situate in the city of Elmira, made by him to the defendant Schuyler C. Rey

Lormore v. Campbell.

nolds, and by said Reynolds to the defendant Rose Campbell, the wife of said John, on or about the 25th day of January, 1867, and recorded in the clerk's office of Chemung county, February 22, 1869, on the ground that the same were fraudulent and void, as against the plaintiffs. Or, that said deeds be declared only a mortgage from the husband to the wife, as security for any actual indebtedness, from him to her, and that there be an accounting between them as to the amount actually due from one to the other.

The real issues raised by the pleadings are as to the fraud and ownership of the property in question.

At the time of the marriage of the defendants, John and Rose Campbell, Rose had a small amount of property of her own, in money, and had two cows. She had small sums of money given to her by persous other than her husband, amounting, perhaps, to $50 or $60. She took in washing and boarders, and by agreement between herself and her husband, she was to have the profits and earnings received from those sources. The defendants, John Campbell and wife, lived together without entirely keeping separate accounts, but contracts were made by them for the purchase of several lots of land in the city of Elmira, on some of which the defendant Rose claimed that she paid the consideration from the sources above mentioned, two of which lots were conveyed directly to the defendant Rose. These lots subsequently greatly rose in value, and were sold at the increased values, and the proceeds invested in other lots, and buildings and improvements were placed and made thereon, the title to which other lots was taken in the name of John Campbell, and which other lots also increased in value, to about $5000 or $6000 by the beginning of the year 1867. It is claimed by Rose Campbell that about this time she first discovered that the title had been taken in the name of her husband. Both John and Rose were illiterate; nei

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