In re the First Judicial Accounting of Nester
Appellate Division of the Supreme Court of the State of New York
Appeal by Montgomery S. Sandford and another, two of the executors and trustees under the last will and testament of Samuel K. Hester, deceased, from parts of a decree of the Surrogate’s Court of the county of Ontario, entered in the office of said Surrogate’s Court on the 20th day of February, 1914, settling the accounts of the executors and trustees herein but denying to the appellants commissions as executors and trusr tees and awarding to them only the specific…
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Appeal by Montgomery S. Sandford and another, two of the executors and trustees under the last will and testament of Samuel K. Hester, deceased, from parts of a decree of the Surrogate’s Court of the county of Ontario, entered in the office of said Surrogate’s Court on the 20th day of February, 1914, settling the accounts of the executors and trustees herein but denying to the appellants commissions as executors and trusr tees and awarding to them only the specific compensation provided for in the will. The notice of appeal states that the appellant executors and trustees also appeal from…
1Dissent
Smith, P. J. (dissenting):
An irrevocable election, as I read the authorities, implies a deliberate selection between two known alternatives. After an election has been made if the apparent situation is materially changed that election may be revoked, if such revocation works no harm to other parties. In 15 Cyc. 262 (note), in speaking of this rule, the editor says: “Knowledge is not to be imputed as a matter of legal obligation, as the doctrine of election is not properly a rule of positive law, but a rule of practice in equity. ‘ In order that a person who is put to his election should be…
2Cases cited3 opinions
- Olcott v. . BaldwinNew York Court of Appeals · 1907
- In re ArkenburghAppellate Division of the Supreme Court of the State of New York · 1899
- Nester v. NesterNew York Supreme Court · 1910