Savage agt. Gould et al.

respect, were false. His omissions were willful. Failing to account for these receipts and convertly using them for himself and partner, was embezzlement and was dishonest (Rex agt. Jones, supra, p. 40; U. S. agt. Forsyth, supra, p. 40; Bachelder agt. Tenney, supra, p. 40). This comprised thirtytwo different items, total $7,400.31; each item retained was a dishonest act, in taking, in concealing, in using and in refusing to account for and pay over. Seventh. Every department of the appellant's administration as it proves him incompetent by reason of improvidence, shows like proof of his dishonesty. These delinquencies are linked together. His improvi dence in conversions, loans and investments, in selling good securities and taking poor or worthless mortgages afforded the opportunity for his dishonest practices and gains. None other would. It was because of his improvidence in loaning that borrowers who were receiving more than the entire value of their security could afford to give appellant and his partner the excess as payment of the large bonuses they exacted, and the evidence of Savage's improvidence is the source and center of his dishonesty. This case comes before this court for review upon the merits. Was this removal justified by principles of equity, is the question? This is in the nature of a rehearing in equity (Robinson agt. Raynor, 28 N. Y., 494; Gilman agt. Gilman, 3 Hun, 22, and cases cited, p. 25; Kyle agt. Kyle, 4 N. Y. Weekly Dig., 120; Sup. Court Rules, No. 42, note 12; Redfield Pr. Sur. Court, p. 465).

BOARDMAN, J.-Edward Savage was removed by the surrogate of Albany county as executor and trustee under the will of John Gould, deceased, because he was "incompetent to discharge the duties of such office as executor, and such trust as trustee, by reason of improvidence and dishonesty in the administration of said trusts, office and estate."

The mass of evidence and the conceded facts are conclusive against the said Savage. He is shown to be incompetent in that he has delegated to others the judgment and discretion

Savage agt. Gould et al.

which, by his acceptance of the trusts, was due from himself. He has allowed his law partner to manage the trust estate for his own benefit. He has taken second mortgages in violation of his duty as executor and trustee. He has taken inadequate security, when ordinary care, judgment and competency would have protected the estate. He has converted the best of securities to invest in the poorest bonds and mortgages.

These acts and others which might be recited, convict Savage of incompetency to administer upon such an estate or discharge such trust duties. The funds in his hands are wasting away through his negligence, carelessness and ignorance, or dishonesty and improvidence.

There is additional evidence which satisfied the surrogate of his dishonesty. He has used the trust funds to secure his own profit, and has sought, by means condemned by law, to secure a pecuniary benefit to himself. He has charged to borrowers a bonus or commission on sums loaned, and put the same, or a part thereof, into his own pocket. He has exposed the securities, taken, to the suspicion of usury; not to the benefit of the estate, but himself. The estate has been managed for his own benefit, and he has deliberately made a profit out of it, when the making of such profit or gain exposed the estate to the greatest risks of loss, some of which have already occurred, and many of which will in all propability ensue. His reckless improvidence, his incompetency, and his acts outside of the sanction of the law, have involved the estate in litigation and charged it with costs. Litigation and costs must almost inevitably ensue in may other cases in the future. This court is satisfied the charges for which Savage was removed by the surrogate are abundantly sustained by the evidence. The interests of the estate and of the cestui que trust demand his removal. A continuance of the conduct of Savage in the future, as in the past, could only result in remediless disaster to the estate and the beneficiaries. Entertaining these views, we concur upon the merits that Savage was justly removed from his offices as executor and trustee.

Savage agt. Gould et al.

It is urged, however, upon this appeal that the surrogate had no jurisdiction to remove Savage from his position as testamentary trustee for dishonesty. It is conceded that the surrogate could remove him for incompetency.

We have already shown that he was incompetent, in our opinion, to exercise these trusts. That incompetency is not shown in one or two isolated instances, as in Emerson agt. Bowers (14 N. Y., 449), but by a long series of reckless, improvident and foolish acts to the serious danger and detriment of the estate. We might safely stop here, and upon this ground alone sustain the surrogate's decision.

But it seems quite clear, also, that the learned surrogate was correct in considering the evidence of dishonesty and including that in the reasons for his removal.

As the law existed in 1871, the surrogate could have removed an executor when "he had become incompetent to serve." At that time (1871) power was given him to remove testamentary trustees "in the same manner as now provided" for the removal of executors (1 Laws of 1871, p. 1010). By chapter 79 of Laws of 1873, page 159, the Revised Statutes were amended so as to include dishonesty in the cases for which an executor might be removed from office. The amendment of 1873 did not affect the manner in which an executor could be removed. That remained the same as before. It added another cause for removal, and therefore the Revised Statutes included such cause for removal, which was equally applicable to executors, testamentary trustees or guardians. The amendment modified the statute as of a date prior to 1871, so that the power to remove testamentary guardians under the act of 1871 could be exercised in case of incompetency by reason of drunkenness, dishonesty, improvidence or want of understanding. The authority to remove is only found in the act of 1871, but the cases in which the power might be exercised were within the province of legislative amendment. An amendment of the Revised Statutes, under such circumstances, causes the act of 1871 to take

Savage agt. Gould et al.

effect in virtue of the amended law, and be controlled by it as so amended. Such seems to us to be the purpose of the two statutes and the natural object of the legislature (Dawson agt. Horan, 5 Barb., 459).

It is not necessary to consider the exceptions taken upon the hearing. There is no substantial conflict in the evidence. The inferences from it are irresistible. There can be no two opinions as to the facts established. Whether they constitute evidence of incompetency by reason of dishonesty or improvidence may, perhaps, be debatable, though we do not hesitate in our own opinion in that respect. Hence these rulings now complained of could not, by possibility, have changed the result or lead to the establishment of facts at variance with those concededly established by the case.

We think the decree of the surrogate is just, and should be affirmed, with costs against Edward Savage personally (Same agt. Same, No. 132 on calendar.)

This case presents the same identical questions upon the removal of Savage as guardian, and upon the same evidence. The decree in this case is also affirmed, with costs against Edward Savage personally.

SUPREME COURT.

EDWARD SAVAGE, as executor, &c., agt. MARY L. GOULD et al. Costs on appeal from surrogate's court

Separate appearance and bill of costs to infant respondents.

Upon an appeal to the supreme court from the decree of the surrogate removing an executor and guardian, it is proper that infant respondents should appear by different attorney than adults and tax separate bill of costs, upon affirmance.

From the service of the petition of appeal, the proceedings, so far as the question of costs were concerned, are to be regarded in this court, viz., costs of proceedings, before and after trial, of argument and term fees. Code of Procedure, section 307, not applicable to such appeals.

Troy Special Term, March, 1880.

Savage agt. Gould et al.

Charles W. Mead, appellant's attorney, for motion for retaxation. But one bill of costs can be taxed, unless more are awarded (Code, sec. 306; Williams agt. Blumer, 49 How. Pr., 12; Allis agt. Wheeler, 56 N. Y., 50; Park agt. Spaulding, 10 Hun, 128-131; Von Keller agt. Schulting, 45 How. Pr., 139; Brockway agt. Jewett, 16 Barb., 594). Trial fee only was allowable (Morgan agt. Morgan, 1 Abb. [N. S.], 40).

Alva H. Tremain, attorney for adult respondents; Andrew Hamilton, attorney for infant respondents, opposed. The Code does not limit the costs to trial fee, but places the appeal "for all purposes of costs as an action in this court (Code, sec. 318; Dupuy agt. Wurts, 47 How. Pr., 225; Seguin agt. Seguin, 3 Abb. Pr. [N. S.], 442; Morgan agt. Morgan, supra; and Gilman agt. Reddington, 4 Hun, 640 explained; see note after opinion). Separate bills of costs were properly taxed (Conkling agt. Bloodgood, 12 Wend., 279; Minturn agt. Main, 2 Sandf., 737; Bridgeport Ins. Co. agt. Wilson, 20 How. Pr., 511). The guardian necessarily appeared and pleaded separately (Sup. Ct. Rule 53). The award of costs means to all parties who succeed (Lawrence agt. Lindsay, 70 N. Y., 566; Sisters, &c., agt. Kelly, 68 id., v28).

INGALLS, J. In the above matter the adult respondents appeared by Mr. Tremain, and the infants by Mr. Hamilton, as their guardian ad litem. The decree of the surrogate was affirmed by the general term with costs. Tremain and Hamilton are not partners, nor in any manner connected in business, nor do they occupy the same office, and there is no claim of collusion or of a device to insure the costs of litigation by their separate appearances. It was quite proper that the infants should be represented by a person other than the attorney for the adult parties. Under such a state of facts it was justifiable to allow the two clerk, in this respect, committed no error in adjusting them

bills of costs, and herein the