In re the Estate of Faile

New York Surrogate's Court

In re the Estate of Faile

14 Mills Surr. 101, 89 Misc. 682, 152 N.Y.S. 463

CourtNew York Surrogate's Court

DecidedMarch 15, 1915

StatusPublished

Cited by1 cases

This text of 14 Mills Surr. 101 (In re the Estate of Faile) 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.

Bluebook

In re the Estate of Faile, 14 Mills Surr. 101, 89 Misc. 682, 152 N.Y.S. 463 (N.Y. Super. Ct. 1915).

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Opinion

Fowler, S.

This is an application for letters of administration with the will 'annexed. On the 9th of February, 1915, an order was made directing that letters of administration with the will annexed issue to Henry Iv. Pomeroy, H. Arthur Pomeroy' and Mary E: Pomeroy upon their executing a bond with sufficient sureties in the sum of $45,000. Mary E. Pomeroy was a residuary legatee under the will of the testator. Henry K. Pomeroy and H. Arthur Pomeroy were not legatees and had no interest in the estate. Subsequently to the entry of [102]*102the decree and before letters were issued to- the persons therein mentioned, Mary E. Pomeroy died. Henry K. Pomeroy and H. Arthur Pomeroy now ask that letters of administration with the will annexed issue to them upon their complying with the provisions of 'the decree of February 9, 1915. Section 2603 contains an enumeration of the persons entitled to letters of administration with the will annexed. It is there provided that letters shall issue to one or more residuary legatees, and section 2588 is made applicable to a proceeding brought -under section 2603. Section 2588 provides that letters of administration may be granted to onie or more competent persons jointly with, and upon the 'application of, a person entitled to such letters, “ or to a competent person or persons not entitled, upon the consent of all the persons entitled to take or share in the estate.” The moving papers contain the consent of all the persons entitled to share in the residuary estate that Mary E. Pomeroy, a person entitled to share in the estate, Henry II. Pomeroy and H. Arthur Pomeroy, receive letters of administration with the will annexed ; but there is no consent of such persons that letters of administration with the will annexed shall issue to Henry K. Pomeroy and H. Arthur Pomeroy independently of their connection with Mary E. Pomeroy. The decree heretofore entered was based upon the petition of a legatee who was entitled to letters of administration. Before letters were issued this legatee died; therefore the decree became ineffective, because the necessary allegations upon which it was granted were fundamentally changed by the death of the petitioner. Those persons who were not entitled to share in the estate, but to whom the decree directed1 that letters issue in conjunction with the petitioner, are not now entitled to such letters. In order to entitled them to letters it will he necessary for them to file a petition containing the consent of all the persons entitled to take or share in the estate who are within this State and competent.

Decreed accordingly.

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Fowler, S.

This is an application for letters of administration with the will 'annexed. On the 9th of February, 1915, an order was made directing that letters of administration with the will annexed issue to Henry Iv. Pomeroy, H. Arthur Pomeroy' and Mary E: Pomeroy upon their executing a bond with sufficient sureties in the sum of $45,000. Mary E. Pomeroy was a residuary legatee under the will of the testator. Henry K. Pomeroy and H. Arthur Pomeroy were not legatees and had no interest in the estate. Subsequently to the entry of [102]*102the decree and before letters were issued to- the persons therein mentioned, Mary E. Pomeroy died. Henry K. Pomeroy and H. Arthur Pomeroy now ask that letters of administration with the will annexed issue to them upon their complying with the provisions of 'the decree of February 9, 1915. Section 2603 contains an enumeration of the persons entitled to letters of administration with the will annexed. It is there provided that letters shall issue to one or more residuary legatees, and section 2588 is made applicable to a proceeding brought -under section 2603. Section 2588 provides that letters of administration may be granted to onie or more competent persons jointly with, and upon the 'application of, a person entitled to such letters, “ or to a competent person or persons not entitled, upon the consent of all the persons entitled to take or share in the estate.” The moving papers contain the consent of all the persons entitled to share in the residuary estate that Mary E. Pomeroy, a person entitled to share in the estate, Henry II. Pomeroy and H. Arthur Pomeroy, receive letters of administration with the will annexed ; but there is no consent of such persons that letters of administration with the will annexed shall issue to Henry K. Pomeroy and H. Arthur Pomeroy independently of their connection with Mary E. Pomeroy. The decree heretofore entered was based upon the petition of a legatee who was entitled to letters of administration. Before letters were issued this legatee died; therefore the decree became ineffective, because the necessary allegations upon which it was granted were fundamentally changed by the death of the petitioner. Those persons who were not entitled to share in the estate, but to whom the decree directed1 that letters issue in conjunction with the petitioner, are not now entitled to such letters. In order to entitled them to letters it will he necessary for them to file a petition containing the consent of all the persons entitled to take or share in the estate who are within this State and competent.

Decreed accordingly.

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Bluebook (online)

14 Mills Surr. 101, 89 Misc. 682, 152 N.Y.S. 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-faile-nysurct-1915.

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