In re the Estate of Smith

26 N.Y. St. Rep. 237

Opinion

Ransom, S.

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.

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