In re Temporary Letters of Administration upon the Goods, Chattels & Credits Which Were of Durban

New York Surrogate's Court

In re Temporary Letters of Administration upon the Goods, Chattels & Credits Which Were of Durban

18 Mills Surr. 390

DecidedOctober 6, 1916

StatusPublished

This text of 18 Mills Surr. 390 (In re Temporary Letters of Administration upon the Goods, Chattels & Credits Which Were of Durban) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Temporary Letters of Administration upon the Goods, Chattels & Credits Which Were of Durban, 18 Mills Surr. 390 (N.Y. Super. Ct. 1916).

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Opinion

Putnam, J.

J.The first ground raised here is that Mr. Apel’s original appointment as temporary administrator revived on reversal of the probate, and hence there was no vacancy to be filled. I think this is unsound (Matter of Choate, 105 App. Div. 356; see Code Civ. Pro., § 2555), and the confirmation of this view appears from the fact that all parties have acted on the firm idea that a vacancy existed to be filled. Section 2624 of the Code of Civil Procedure, to the effect that a decree of probate must revoke former letters of administration, is only declaratory. If the probate decree should'not say that the temporary letters are revoked, it is nevertheless plain that such temporary letters have been superseded.

Furthermore, for the protection of sureties on a temporary administrator’s bond, that office should be regarded as terminated, and the appointee as functus officio, upon the issue of regulalr letters. Otherwise a probate contest might continue extending over the period of an appeal to the Court of Appeals, and, on reversal, appellants’ theory would restore the authority and rights to custody of a temporary administrator, possibly without additional security.

The other ground insisted on is that a stranger had been needlessly put in control, although Mr. Apel stood ready to [392]*392act without further fees. But this liberality of Mr. Apel was a belated offer, not announced till June 5th, a week after Mr. Lynch has been appointed.

It is urged that the attorneys did not have proper notice. A temporary administrator is to meet an exigency calling for a conservator. Hence there are more elastic requirements as to service. If the attorneys who have already appeared are without the county, the surrogate may dispense with any notice to them. (Code Civ. Pro., § 2602.) Here are concerned two attorneys in Kings county and one with a.n office in New York county, where is also the special guardian. Hence none could demand notice as matter of right. Having before him two rival petitions, the surrogate could name a temporary administrator, and even choose one not “ interested ” (as appears from the contrasting words of sections 2588 and 2596 of the Code of Civil Procedure), for such an ad interim office, rather than to give to either competitor the advantage of possession.

I advise that the orders of the Surrogate’s Court of Eichmond county be affirmed, without costs.

Jexks, P. J., Cabe, Mills and Eich, J.J., concurred.

Orders of the Surrogate’s Court of Eichmond county affirmed, without costs.

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Putnam, J.

J.The first ground raised here is that Mr. Apel’s original appointment as temporary administrator revived on reversal of the probate, and hence there was no vacancy to be filled. I think this is unsound (Matter of Choate, 105 App. Div. 356; see Code Civ. Pro., § 2555), and the confirmation of this view appears from the fact that all parties have acted on the firm idea that a vacancy existed to be filled. Section 2624 of the Code of Civil Procedure, to the effect that a decree of probate must revoke former letters of administration, is only declaratory. If the probate decree should'not say that the temporary letters are revoked, it is nevertheless plain that such temporary letters have been superseded.

Furthermore, for the protection of sureties on a temporary administrator’s bond, that office should be regarded as terminated, and the appointee as functus officio, upon the issue of regulalr letters. Otherwise a probate contest might continue extending over the period of an appeal to the Court of Appeals, and, on reversal, appellants’ theory would restore the authority and rights to custody of a temporary administrator, possibly without additional security.

The other ground insisted on is that a stranger had been needlessly put in control, although Mr. Apel stood ready to [392]*392act without further fees. But this liberality of Mr. Apel was a belated offer, not announced till June 5th, a week after Mr. Lynch has been appointed.

It is urged that the attorneys did not have proper notice. A temporary administrator is to meet an exigency calling for a conservator. Hence there are more elastic requirements as to service. If the attorneys who have already appeared are without the county, the surrogate may dispense with any notice to them. (Code Civ. Pro., § 2602.) Here are concerned two attorneys in Kings county and one with a.n office in New York county, where is also the special guardian. Hence none could demand notice as matter of right. Having before him two rival petitions, the surrogate could name a temporary administrator, and even choose one not “ interested ” (as appears from the contrasting words of sections 2588 and 2596 of the Code of Civil Procedure), for such an ad interim office, rather than to give to either competitor the advantage of possession.

I advise that the orders of the Surrogate’s Court of Eichmond county be affirmed, without costs.

Jexks, P. J., Cabe, Mills and Eich, J.J., concurred.

Orders of the Surrogate’s Court of Eichmond county affirmed, without costs.

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18 Mills Surr. 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-temporary-letters-of-administration-upon-the-goods-chattels-nysurct-1916.

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