BALLARD V. CHARLESWORTH. CATTARAUGUS COUNTY.-HON. ALFRED SPRING, SURROGATE.-October, 1881. BALLARD V. CHARLESWORTH. In the matter of the grant of letters testamentary to SAMUEL CHARLESWORTH, as executor of the will of KELSEY BALLARD, deceased. Code Civ. Pro., § 2638, subd. 1, allowing an objection to the grant of letters testamentary to one named as executor in a will, on the ground "that his circumstances are such that they do not afford adequate security to the creditors or persons interested in the estate, for the due administration" thereof, does not differ materially from the statute which it supersedes. The term "adequate security" does not have reference, primarily, to pecuniary responsibility. The fact that one named as executor in a will is worth only half as much as testator is not a sufficient reason for requiring a bond as a condition precedent to the issuing to him of letters testamentary. Where a testator, in his good judgment, has exhibited confidence in another by nominating the latter executor of his will, a court should not interfere on so slight a pretext as mere poverty on the part of the nominee. Shields v. Shields, 60 Barb., 56-followed. OBJECTIONS to the issuing of letters testamentary to Samuel Charlesworth, named as executor in decedent's will; filed by Truman A. Ballard and another, legatees therein mentioned. The facts appear sufficiently in the opinion. D. B. ALLEN, for executor. WILLIAM MANLEY, for objector. THE SURROGATE.-The only ground upon which objec BALLARD V. CHARLESWORTH. tions to the issuing of letters testamentary to the executor named in the will are based, is that his financial condition is so precarious that the estate would be unsafe in his hands. There is no imputation resting upon his integrity, and no pretence but that he is honest and competent to manage the large estate which the testator saw fit to entrust to his charge. The aggregate property of deceased is about twelve thousand dollars, while the executor is worth only about six thousand dollars, and from this the two legatees who have filed objections infer that the estate is liable to be dispersed or wasted. Subdivision 1 of § 2638 of the Code, which is the foundation of these proceedings, is not materially different from the statute in force previously to its enactment (see 3 R. S., 6th ed., 73, § 7). Under that statute, it has been held that the term "adequate security" does not have reference primarily to the executor's pecuniary responsibility, but to his habits of husbandry, whether provident or improvident, whether reckless or careful (Shields v. Shields, 60 Barb., 56; Mandeville v. Mandeville, 8 Paige, 475). The doctrine is a salutary one that, where a testator, in the maturity of his powers, and having an intimate personal relation with the man he names as his executor, living in close proximity to him for years, and understanding thoroughly his temperament, habits and mode of life, chooses his executor thus deliberately, a court should not interfere with this clearly expressed wish of deceased, unless there is palpable proof showing that testator has made an injudicious and unsafe selection. The bare isolated fact that the executor is only worth one half this large estate is not a sufficient reason SHELDON V. DOW. to require the giving of a bond as a condition precedent to the issue of letters. Even if he was poor, it could not overmatch a life of conceded integrity and trustworthiness. If the testator, in his good judgment, had confidence in the integrity of his executor, surely a court should not interfere on so slight a pretext. I, therefore, find and direct that the proceedings be dismissed and that letters be issued to the executor. Ordered accordingly. CATTARAUGUS COUNTY.-HON. ALFRED SPRING, SURROGATE.-August, 1882. SHELDON V. Dow. In the matter of the probate of the last will and testament of DEMARIUS SHELDON, deceased. The same acute perceptions and enlarged comprehension are not requisite in a testator disposing of a few acres of land in a rural district, and a few securities, as in one distributing a diversified property of the value of a million dollars. Where all the persons interested in procuring the rejection of an alleged will are of full age, and none of them authorizes any appearance, but the sole contestant is one named as executor in a prior will, he, being in court by virtue of a mere technical provision of statute, stands in the attitude of a volunteer; and proof of mental incapacity on the part of decedent should be of unusual force to justify a court in refusing probate. The paper propounded as testatrix's will was executed in January, 1881, about two months before her death, and when she was nearly eighty years of age. For more than three years she had been an invalid, in consequence of an attack of paralysis, before which she had been of SHELDON V. DOW. fair intelligence, of a reticent disposition, and a diligent reader. She had no children, but was the widow of S., one of whose grandchildren was principal devisee in the will. Her property consisted of a homestead of a few acres, and a small amount in securities. Nothing in the will indicated a lack of mental vigor, or called for criticism. During four months preceding the execution, she was under the care of others, by whose testimony it appeared that she was the victim of hallucinatious-as that she was not in her room when she was, that it had been altered, that it was occupied by gipseys or Indians, that she had been confined in a cellar, etc.; which delusions, however, were intermittent, and not of daily occurrence. Proponent's evidence, on the contrary, was plain to the effect that she was mentally capable. In short, there was a conflict of evidence, showing, on the one hand, that she was almost totally imbecile, and, on the other, that she retained her mental faculties sufficiently to qualify her to make a will. On the day of the drawing and execution of the paper propounded, she conversed intelligently with the draftsman as to changes to be made in her dispositions as contained in a prior will, and directed that will to be burned; and the testimony of the subscribing witnesses, so far as it disclosed the facts, showed nothing irrational as then occurring.— Held, that, in view of the conflict of evidence as to decedent's capacity previously to the time of execution, the controversy must be narrowed down to that period; that the evidence disclosed a mental condition at that time sufficiently sound to enable her to make a will; and tha: the petition for probate must be granted. Delafield v. Parish, 25 N. Y., 1-compared. APPLICATION, for the probate of decedent's will, by Albert G. Dow, named as executor therein; opposed by George Sheldon, named as executor in an alleged prior will. The facts appear sufficiently in the opinion. WM. H. HENDERSON and J. G. JOHNSON, for proponents. HUDSON ANSLEY and F. W. STEVENS, for contestants. THE SURROGATE.-The last will and testament of testatrix, which is here offered for probate, was executed on January 31st, 1881, when she was nearly eighty years of age. Although deceased left a sister and others, who would be benefited by the rejection of the SHELDON V. DOW. instrument propounded, objections are filed only on behalf of the executor of a previous will. While the objections are of the usually elaborate kind, the contest really hinges upon the single question of the mental capacity of testatrix-was she of sound disposing mind and memory at the time of the execution of the will? Previously to the paralytic attack which culminated in her death, the testatrix was a lady of fair intelligence, of taciturn, reticent disposition, a devoted member of the congregational church of Randolph, and a diligent reader of religious books and papers. For three or four years before her decease, she had been an invalid by reason of an attack of hemiplegia, which incapacitated her from engaging in manual labor. She never had any children, and her nearest relative was a sister who resided near her, in Randolph. At the time of her marriage to Mr. Sheldon, he was the father of five children, two of whom are now living, the others having died leaving issue, among whom are Charles C. Sheldon, the principal devisee of the instrument propounded, and Thaddeus Sheldon, a devisee named in a former will. The property of deceased consisted of a house and a few acres of land in Randolph, upon which she resided at the time of her death, with a few notes or mortgages, the amount or kind of which was not developed upon the trial. There is nothing whatever in the will itself, indicating a lack of mental vigor in the testatrix. As far as can be gleaned from the voluminous mass of testimony in the case, Charles C. Sheldon was regarded with as much favor and affection by testatrix as anyone else. Her equable temperament never permitted her to burst forth in ebullitions of either joy or anger, but she |