Calyer v. Calyer

4 Redf. 305

• Court: New York Surrogate's Court
• Decided: April 15, 1880
• Status: Published

Opinion

The Surrogate.—The foundation of this application is the claim of the devisee that the rents in question have been devised to her individually, for life, and that the said administrator with the will annexed has nothing to do with them.

I agree with her ; but this court has no jurisdiction to control the conduct of an administrator with or without the will annexed, in relation to property wrongfully taken possession of by him under color of his letters of administration. (Marston v. Paulding, 10 Paige, 40; Shumway v. Cooper, 16 Barb., 556.)

The provision of the Revised Statutes, giving the Surrogate power to direct and control the conduct of executors and administrators (2 R. S., 220, § 1, subd. 3), does not extend to property which as executors or administrators they had no right to take possession of; in the eye of the law such property must be deemed to be held by them in some other capacity, and the remedy of the injured party to compel a delivery of it or to restrain further interference with it must be sought in some other court. (Shumway v. Cooper, supra.)

Ordered ’ accordingly.