In re the Estate of Martin

16 A.D.2d 807, 228 N.Y.S.2d 369, 1962 N.Y. App. Div. LEXIS 9740

Opinion

In a proceeding by decedent’s widow, as a legatee and as a coexecutrix, to remove from office her three coexecutors, Arnold L. Ginsburg, Jane Martin Ginsburg and Jonah J. Goldstein, and for other relief, in which the widow in her supplemental petition alleged, inter alia, six grounds for their removal and an additional ground of dishonesty (Surrogate’s Ct. Act, § 99, subd. 2) for said Goldstein’s removal, he appeals from so much of an order of the Surrogate’s Court, Kings County, dated March 15,1962, as denied his motion to dismiss the cause of action (contained in paragraphs 82 and 83 of the petition) seeking his removal for dishonesty, on the ground that it fails to state facts sufficient to constitute a ground for his removal. Order, insofar as appealed from, reversed, with $10 costs and disbursements to all parties filing briefs payable out of the estate; and appellant’s motion to dismiss granted. The dishonesty contemplated by the statute is dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor (Matter of Flood, 236 N. Y. 408, 411). None of the allegations contained in paragraphs 82 and 83 of the supplemental petition shows that appellant has been dishonest in his handling of money matters, or that he is not to be trusted in money matters, or that there is any reasonable apprehension that the funds of the estate would not be safe in his hands (Matter of Cohen, 254 App. Div. 571, affd. 278 N. Y. 584). Hence, the motion to dismiss should be granted. Beldock, P. J., Hill and Babin, JJ., concur; Christ and Hopkins, JJ., dissent and vote to affirm.