Abernathy v. Abernathy

DuPONT, J.,

dissenting.

I am constrained to dissent from the judgment of affirmation pronounced in this cause, nor do I concur in thtfe views of my brethren upop the moral aspect of the case, as presented by the evidence. I can discover, in the vast amount of testimony contained in the record, not one gleam ■!of .light which would serve to relieve the darkness- of the moral picture presented to us by tbe general conduct and. deportment of this defendant; and as little do I concur in the reprehension of and the rebuke which has been administered to the individual who appeaz-s on the record as the next friend of the complainant. So far from viewing his interference as an outrage upon the conjugal rights of the defendant, I think, considering his relation to this unfortunate female, that he must have been lost to every impulse of manliness had he hesitated to interpose for the purpose of arresting her in the downward course to degradation, to which she was fast tending, through the influence of her connection with a dissipated, debauched husband.

But all these matters I consider as having nothing to do with the question properly presented for our adjudication. It is not the question of divorce or separation that we are called upon to decide, but simply whether or not an individual should be removed from his office of trustee of an estate. In considering that question, it seems to me that but two very simple enquiries are presented: First, has the trustee been prudent and discreet in the exercise oí his functions ? and, secondly, would the trust property be endangered by a longer continuance under his control? According to the proofs taken in this cause, I think that these questions are of very easy solution. The evidence shows, that, in the brief period of two or three years, the trustee has managed to get rid of every vestige of the trust •property, save one negro man, Harry, and that, but for the prompt and friendly interposition of this very next friend, who has been so sternly rebuked for his interference, even that small fragment of the wrecked estate would have been sold under execution for a debt of the trustee. But the trustee denies, in his answer, the charge of “waste,” and y'>t that fact and admission contained in that verylanswershow a most reckless and improvident dealing with the property.

In view of all the facts disclosed by the answer and the proofs, it is impossible for me to resist the conclusion that this trustee should be removed and the property be placed in the custody of one who may be better disposed to protect, if not improve it, for the benefit of this unfortunate lady.