In re the Probate of the Will of Hopkins (110 A.D. 907, 1905)

Hirschberg, P. J., Bartlett, Woodward and Jenks, JJ., concurred; Hooker, J., read for reversal.

Appeal from an order of the Surrogate’s Court of Westchester county directing the deposit of moneys or a warrant or attachment to issue against Fanny W. Hopkins.

Hooker, J.

(dissenting): On the 9th day of May, 1901, Robert E. Hopkins died, leaving a last will and testament in which Fanny W. Hopkins and another were nominated executors. The will was later adinitted to probate, but the decree was thereafter leversed by the Court of Appeals (Matter of Hopkins, 172 N. Y. 360), and a few days after" the reversal Fanny W. Hopkins made application to the Surrogate’s Court for letters'of temporary administration. On or about the 19th of January, 1903, an order was made by th^t court appointing her temporary administratrix. She filed the oath and bond required in the’’ order. It was also there provided that she deposit with the Farmers’ Loan and Trust Company any moneys belonging to the estate of the decedent that xmight come into her hands. Robert E. Hopkins, Jr., is the infant son of - the deceased and the son of Fanny W. Hopkins, the latter’s widow. He was at the time of his father’s death and still is an infant. Joseph W. Middlebrook was on the 25th day of May, 1901, duly appointed special guardian of the infant in the proceedings for the probate of the will; these are still pending, and he has continued to and still is acting in the capacity of such special guardian. Believing that the temporary administratrix, since the 23d day of March, 1903, liad not complied with the terms of the decree touching the deposit of moneys in the Farmers’ Loan and Trust Company, Joseph W. Middlebrook as special guardian of the infant made a motion on the' 28th day of October, 1904, before the surrogate of Westchester county to punish her as for contempt of court for her failure to comply with those provisions of the order appointing her. On the hearing of the motion her attorney objected to the proceedings on ihe ground that the papers on which the order was sought to be based were defective and insufficient, and on the further ground that the special guardian was not an interested party, or creditor of the estate of the decedent, and hence unauthorized to seek to compel a compliance with the order in question. Section 2678 of the Code of Civil Pioceduro provides: A temporary administrator, appointed as prescribed in this article, must, within ten days after any money belonging to the estate comes into his hands, deposit it as prescribed in.this section.” And section 3679 Of the Code of Civil Procedure provides: “ If a temporary administrator neglects to make a deposit, as pre- , scribed in the last section, within the time therein limited, the surrogate must, upon the application of a creditor-or person interested in the estate, accompanied with satisfactory proof of the neglect; make an order; directing, him to do so forthwith, or to show cause,” etc. The contention of Mrs. Hopkins, the temporary administratrix, that the'special guardian might not move against her in the premises because the application may be made only by a creditor or person interested in the estate and that he is neither of these, seems to be well founded. ,The special guardian of course does not claim to be a creditor of the .estate, and that he is hot a person interested therein is the result of logical reasoning, The Code of Civil Procedure has defined the meaning of the words “person interested in the' ■ estate.7 Srrbdivision 11 of section 2514 says: “ The expression ‘person interested,' where it' is used in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to .share in the estate or the .proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or otherwise, except as a creditor.” The obligation of the special guardian extends to the care and protection of the interests of the infant that arise touching his legal status, rights and privileges in the proceedings in which the special guardian may be nominated. Generally he has no duty whatever to discharge in reference to the estate of the testator. (Matter of Budlong, 100 N. Y. 203; Matter of Ruppaner, 7 App. Div. 11.) And yet the provisions of section 2679,are'evidently not meant to limit the power of'the surrogate to control 'the conduct of "persons acting under decrees made by him, Before the enactment Of that section there was, and it must be held there still resides in the Surrogate’s Court, inherent power to compel obedience to the terms " of such decrees, and he may of his own motion, if the fact is properly established, . make-an order such as the one appealed from, that the temporary administratrix forthwith deposit with the trust company all moneys belonging, to the estate or show cause why a warrant of attachment should not issue against her. -The contention of the appellant, however, that -the papers on which the motion was made were insufficient, is entitled to controlling weight. .The order appealed from appears to have been made upon facts claimed to, be established by the - affidavit of Joseph W. Middlebrook, and his affidavit is insufficient, in such a proceeding as this, to establish the fact that since the 23d day of March, 1903, Fanny W. Hopkins has failed, neglected and refused to comply, with the direction of the surrogate in'reference totibe deposit of moneys belonging to the estate with the Farmers’ Loan and Trust Company. This fact he alleges upon' information and belief in his affidavit. He next makes the positive averment' upon his own knowledge that she .has received as such temporary administratrix the amount of about $35,000 per annum; and then avers that his " information in regard to the deposits with the trust company “was obtained' from a-conversation had this day with Samuel Sloan,. Jr;, the Secretary of said . Farmers’ Loan and Trust Company, at the office of said' Company, No. 2.2 William Street, New York City.” The conversation itself is not related, and there is a total absence of any reason why the affidavit of SlOati himself was not procured for the purpose of establishing the fact) that"is sought, to be shown in this hearsay manner. Especially because of the failure to state the reason why Sloan’s depositiondoes not appear, the affidavit.is. insufficient.and the' record do.es not contain legal proof that Mrs. Hopkins has not complied with the direction of the surrogate in relation’to the deposit of moneys. It has long been the practice in this State, where statements in affidavits.are made upon information and pelief, to require good reasons to be given why the deposition of the party who is able to speak from positive knowledge is not supplied. It was.said in Whitlock v. Roth (5 How. Pr. 143) by the New York General Term that “ So far as the facts may be within" the knowledge of the plaintiff, such as the existence of the -debt and the . ■ manner in which it was contracted, they must be stated positively; but-so Jar as they necessarily rest on information derived from others they may be so stated, when the sources and nature of the information are particularly -set out and good' ■ r.eason is given,why a positive statement of them -caqnot be procured.” In Acker, Merrall & Condit v. Saynisch (25 Misc. Rep. 415) it'is said: “The two affidavits purporting to support the attachment upon this ground did not contain the necessary allegations upon' the knowledge of the affiants, but stated them • upon information and belief without giving the names of the persons from whom such information was derived, or stating the reason why such persons’ affidavits were not submitted. This omission is fatal to the attachment and called for its vacation.” In People v. Snaith (57 Hun, 332) it was held th,at where positive-* affidavits of parties having knowledge of the facts are not produced, the failure to do so must be satisfactorily explained; and "the court said: “The non-produc-. tion of the affidavits of persons whose knowledge of the facts is relied upon should be satisfactorily excused. When the plaintiff resorts to methods most liable to mistakes he should take the more care to guard against them. It is believed that these views are supported by a great weight of authority, and are as liberal to the plaintiff as can well consist with a proper regard for the right of personal liberty. (Martin v. Gross, 22 N. Y. St. Repr. 439; Thompson v. Best 21 id. 103; Crandall v. Bryan, 15 How. Pr. 48; Whitlock v. Roth, 5 id. 143; De Nierth v. Sidner, 25 id. 419; Roderigas v. East River Savings Inst., 76 N. Y. 316, 3.3; Bennett v. Edwards, 27 Hun, 352; Hallock v. Van Camp. 55 id. 1.)” It was held in Yates v. North (44 N. Y. 271) that where the affidavits are made on informati >n only they are unavailing unless it be shown that the persons from whom the affiants profess to have obtained the information be absent, and their affidavits cannot be obtained, and this -case is cited as- an authority upon a-similar question in Steuben County Bank v. Alberger (78 N. Y. 252). In Abrams v. Lavine (90 Hun, 566) the plaintiff, to support an attachment, relied upon his affidavit of the statement of one Aronsen, but it was held that the affidavit was insufficient because the plaintiff failed to give any sufficient reason why Aronsen’s affidavit was not produced. In the more recent case of Rolker v. Gonzalez (25 App. Div. 96), decided in this department, the plaintiff appealed from an order vacating his order of arrest in an action for libel; the order was affirmed, this court holding the affidavit to be defective for assigning no reason why the affidavit of Guerra, whose statement plaintiff had incorpo-. rated in his own affidavit, was not presented to the court. (See, also, Bennett v. Edwards, supra, and De Nierth v. Sidner, supra.) Buell v. Van Camp (119 N. Y. 160)’is not authority to the contrary. For in that'case the plaintiff's affidavit referred to and made a part thereof affidavits of others, and assigned them as the sources of his knowledge and the grounds of his belief; and even in one of those affidavits it was stated that the affidavit of a third person, from whom the affiant received some information, was not obtainable for reasons there given. Because, therefore, the surrogate has made an order directing the temporary administratrix to deposit moneys or show cause why a warrant of attachment should not issue against her without any legal evidencebefore him that she has failed to do so, his action, though taken upon his own initiation, was unwarranted and the order must be reversed. Becáuse the special guardian was without authority to interfere in this branch of the administration of the estate of the decedent and has attempted to usurp the functions of other officers of the court whose duty it is to protect the infant’s share of the decedent’s estate, the costs of this successful appeal' by the administratrix from the order made in the proceedings instituted by him should be paid by him personally.

Code Civ. Proc. chap. 18, tit., 8, art. 5.— [Rep.