In re the Administration with the Will of Depau

1 Tuck. Surr. 290

• Court: New York Surrogate's Court
• Decided: July 1, 1870
• Status: Published

Opinion

The Surrogate.

The question in the case at bar is whether the act of 1863, authorizing the appointment of receivers of the estates of deceased persons by the Supreme Court, repeals the jurisdiction of the Surrogate to appoint administrators with, the will annexed upon those estates. The following is the text of the act:

■ Chapter' 466. " •

. -Ah act to amend the. forty-fifth section of Article. Third, Title Second-, -Chapter Sixth,- -of Part-Third of the Revised Statutes, passed May 7th,. 1863 (three-fifths being present), .without the. approval of the Governor,

... Section 1. The forty-fifth. section of article third, chap.ter sixth, part second, title second of the Revised Statutes, is hereby amended .by adding thereto, as follows :■ • . ■

“ But where, either by actions or proceedings in partition or division, or for the construction of a last will and testament, an estate has been brought within the possession, direction, or control of the Supreme Court of this State, which shall have . acquired jurisdiction . oyer the same, .such Supreme Court may,’upon the death of the surviving executor of said will and testament, and during the pendency of such' action or proceedings, and until they are finally carried into effect, appoint a receiver of said estate, upon such terms and conditions, and upon- such notice to all parties and persons interested, as said Court shall direct, and upon such order as to security or otherwise as to said Supreme Court may seem expedient; and to enable it tó' carry into effect its'orders and décfees m "relation to said estate, such receiver'when' appointed shall be the successor in interest of said, surviving executor, and-shall have like power and authority as administrators with ¡the Will-annexed,-appointed by-the Surrogate, but "subject to the orders of said Supreme Court in. the premises. . i “ § 2. This act shall take effect immediately,”

■, The Revised Statutes provide: “ If all such-executors or administrators :shall die, * - the Surrogate shall issue letters of 'administration upon the goods, chattels, credits and effects of the deceased, .left mnadministered, With the will annexed, * ^ " *' to the widow, or next of kin, ' or creditors of thé" deceased, in the same manner .as hereinbefore, directed,, in relation- .to original letters, of administration, (3. JR. S., -5th' ed., p. ■ 162, •§ 45.)

It will be noted that , the language here'.used is cqm~ pulsory.. The Surrogate is not at liberty to refuse to •issue these . letters oh the happening of the specified contingency... He “shall issue, letters.”- If he do not, he may be. mandamused to do so, by any Justice of the. Supreme Court,- at Chambers, . _ -. .,

T'do not see that this act of 1863 repeals the provisions of the Eevised Statutes. It provides for a receiver to do the samé things and have thé same power and authority as an administrator with the will; but it does not prohibit or declare unlawful the Surrogate’s appointment of an administrator in- such a case. It is still made the duty of the Surrogate to appoint administrators with the will,-where the executors are all dead; and if by this means two sets of officers are appointed to care for the same property, that inconvenience is the fault of legislation, not of" the judicial officers, who must obey it.

Letters granted to petitioner.