In re the Probate of the Last Will & Testament of Aebly

261 A.D. 839, 25 N.Y.S.2d 993, 1941 N.Y. App. Div. LEXIS 7713

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1941
• Status: Published

Opinion

Appeal from decree of the Surrogate’s Court of Richmond County in so far as it denies the petition of Charles S. Scholen for letters of administration c. t. a. and grants limited letters of administration to Waldo M. Chapin. Decree, in so far as appealed from, reversed on law and facts, with costs, payable out of the estate, and the application of Charles S. Scholen for letters of administration c. i. a. granted. The credible evidence in respect of the stock certificate claimed to be possessed by Scholen as collateral for a loan does not warrant a finding that Scholen is dishonest and therefore disqualified under section 94, Surrogate’s Court Act, to serve as administrator. The wishes of Astrid Carlson that Scholen should act as administrator should be heeded under the circumstances herein. Whether or not the stock in question should be deemed an asset of the estate may be determined when an accounting is had, in accordance with the procedure in an analogous situation in Matter of Rosenfeld (157 Misc. 686). Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.