I am willing to pay all due respect to the maxim of the law, “ whom the testator will trust so Will the lawnevertheless, when the interests of other parties are involved, they have the right to the protection of this court, though the testator may have been improvident in his selection of an executor. The language of section 8 (2 Statutes at Large, 73) is, “that if a person is appointed executor, and has become incompetent by *305law to serve as such, or his circumstances are so precarious as not to afford adequate security for his due administration of the estate, the Surrogate may require such person to give a bond with surety like those required by law for the administrator; ” and in case of failure, he may supersede the letters.
By chapter 359, of the laws of 1870, the Surrogate is authorized to revoke the letters, and discharge administrators, collectors, testamentary trustees, or guardians, from their trust, upon such terms and conditions as in his judgment may be proper for the security of the estate. It is clear, therefore, that the Surrogate has the power, on proper cause shown, to remove the executor and guardian in this matter.
The counsel for the executor and guardian sought to be removed, or of whom security is devised, claims that the Surrogate has no power to interfere with respect to the $4,000, proceeds of the life policy, because it is payable to the infants and not therefore an asset of the estate. That it is not an asset of the estate I think quite clear, but by force of the testamentary appointment as guardian, it came into the hands of such guardian, and he is responsible for it. Section 3 (2 Statutes at Large, 157) provides that “as such guardian he shall take the custody and management of the personal estate of such minor, and the profits of his real estate,” &c.
The counsel also seems to suppose with the referee, that if security shall be required, it should be upon the basis of the amount of assets in hand, over and above the debts. This is clearly erroneous; for if the fund is in his hand, security should be given to ensure its proper application, both to the payment of debts, and legacies; and by section 20 (of 2 Statutes at Large, 74), it is provided that the Surrogate shall require security by way of bond with sureties like those required of administrators; and by section 42 (2 Statutes at Large, 78), the *306penalty of such bond shall not be less than twice the value of the personal estate, of which the deceased died possessed, and substantially the same security should be required of the guardian (2 Statutes at Large, 157, § 8).
The fact that there has been a mutual arrangement between the executors and guardians, that executor Hawks shall have sole control of the estate, under advice of the other executors, does not exclude the executor Ackermann from resuming control as executor and guardian at any time, by virtue of his appointment as executor and guardian, and he is charged with that responsibility.
The amount of the assets appears to be over $9,000 in the hands of the executors as such, and the amount of funds in their hands, as guardians, seems to be about $4,000.
Under these circumstances, I am of the opinion, that the executor named should give security by bond, in the penal sum of nineteen thousand dollars, and as guardian, by bond in the penalty of eight thousand dollars, and in the event of his failure to do so, let his letters be revoked.
Order accordingly.