Cornwell v. Cornwell

1 Dem. Sur. 1

• Court: New York Surrogate's Court
• Decided: June 15, 1882
• Status: Published

Opinion

The Surrogate.

The decedent died on the 7th of April last, and on the 24th of that month an instrument purporting to be her will was propounded for probate. A contest has arisen which is likely to cause delay in granting letters, and which, therefore, makes advisable the appointment of a temporary administrator under § 26G8. Mr. Jacob W. Cornwell, who is named in the alleged will as one of the executors, petitions for his own appointment as temporary administrator. This application is opposed by the contestant, who charges him with unduly influencing the decedent in the making of the will. Under such circumstances I have several times held, in accordance with the suggestion in Howard v. Dougherty (3 Redf., 535), that ordinarily the person named as executor ought not to be appointed temporary administrator. There are exceptions to this rule of exclusion, but the case at bar comes within the rule.

I am the more disposed to this view, because of the fact that no objection is urged by the moving party to the selection of Mr, G-eorge W. Weeks, who is named in the will as Mr. Cornwell’s co-executor, and whose appointment would be satisfactory to the contestant. An order appointing Mr. Weeks as temporary administrator may, therefore, be presented for settlement.