Opinion
September, 1922.
Arthur R. Wilcox, for petitioners.
The petitioners, the executors of the estate, pray for the approval of the court of certain acts of the executors in borrowing certain sums of money and the pledging of certain securities of the estate. Section 215 of the Surrogate's Court Act only relates to the power of the court to make direction as to value, manner and time of sale of property. The conduct of the estate, pledging of securities, borrowing of money, dealing with the assets of the estate in order to bring about a final judicial settlement of the estate is a matter that is entirely invested in the executors. The executor is the personal appointee of the testator and derives his power from the will. Letters testamentary are only evidence of the power. If the court attempted to direct executors in such duties the court would become the executor and would be foreclosed upon a final accounting to hear objections urged against the acts of the executors. It is my universal practice not to advise executors in such matters. In this estate the executors have not filed an inventory of all the assets of the estate and the court has not been placed in the position of having full knowledge of the accurate condition of the assets and liabilities of the estate. However willing the surrogate may be to aid the executors in the administration of an estate it is presuming too much to seek his advice and approval of acts of executors which may be subject to his consideration upon a final accounting. An order in a matter of this character is not justified by precedent, nor is the procedure orderly.
Ordered accordingly.