In re Petition for Probate of the Last Will & Testament & Codicil Thereto of Watson

209 A.D. 876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1924
• Status: Published

Opinions

Order of Surrogate’s Court of Westchester county appointing temporary administrators affirmed, with costs, payable out of the estate, to all persons appearing and filing briefs on this appeal. The Surrogate’s Court Act, section 126, provides that “ the surrogate may, in his discretion, issue to one or more persons letters of temporary administration * * *.” In this proceeding the necessity for temporary administration is admitted by all parties before this court. The learned surrogate, upon the petition of the executors named in the alleged will for appointment as temporary administrators, and upon objections thereto, filed by the contesting next of kin, appointed two strangers to the proceeding as temporary administrators. (123 Misc. Rep. 323.) The main objection to the appointment (urged solely by the four appellants, residuary legatees) is predicated upon the fact that if the will should be probated there would be a saving to the estate by the appointment as temporary administrators of the executors named therein; or, if the executors were not appointed, that a saving, less in amount, would be effected by designating as temporary administrator the trustee of the residuary estate. If probate of the will is ultimately rejected, there will be no saving to the estate in the amount of commissions. Doubtless if the matter were open to bids before the surrogate for the right to act as temporary administrator of this large estate, some of the next of kin would agree to act .for even less than the existing lowest bid, and if it were open to all trust companies to bid, still further savings might be effected. The surrogate clearly had the power to appoint a stranger to the proceeding (Matter of Plath, 56 Hun, 223), and upon the facts presented we are of the opinion that the surrogate, in making the order appealed from, did not abuse the discretion vested in him by the statute. Kelly, P. J., Manning, Kelby and Young, JJ., concur; Kapper, J., reads for reversal.