In re the Estate of Weinstein

149 Misc. 907, 268 N.Y.S. 304, 1933 N.Y. Misc. LEXIS 1390

• Court: New York Surrogate's Court
• Decided: December 15, 1933
• Status: Published

Opinion

Henderson, S.

The widow makes this application for her appointment as temporary administratrix with limited letters for the sole purpose of prosecuting a cause of action to recover damages for causing the decedent’s death. Such damages are exclusively for her sole benefit, subject only to the payment of the reasonable expenses of the action or its settlement, the legal representative’s commissions, and the amount, if any, by which the decedent’s assets are insufficient to pay the decedent’s reasonable funeral expenses. Such funeral expenses are preferred in payment out of decedent’s assets over all debts of the decedent. The alleged insolvency of the estate is immaterial.

The widow alleges that she has two brothers who are attorneys and who will prosecute the cause of action without reducing the amount of damages by any fee for legal services, and. that if the executors, one of whom is an attorney, insist on employing another attorney, his fee, to the extent that it may be allowed, will actually come out of her pocket without any reasonable necessity therefor. While these and other circumstances may have an equitable appeal to the conscience of the court, there does not appear to be any present necessity for such an appointment. If the widow’s objections to the probate of the decedent’s will be sustained, she may obtain letters of administration without undue delay. If the will be admitted to probate, it may be possible to arrange for the employment of her brothers as attorneys in the matter of the death claim by releasing the executors from all liability arising out of such employment.

The present motion is denied without prejudice to a renewal thereof or to such other application as the widow may be advised to make.

Settle order.