In re Wallace

68 A.D. 649, 74 N.Y.S. 33

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1902
• Status: Published

Opinion

Williams, J.:

The order appealed from should be reversed and a decree directed revoking the letters of administration issued, to James Gorman, respondent, with ten dollars costs and disbursements of this appeal to appellant, payable from the estate. The respondent is an unfit and improper person to remain administrator. He has acted improperly, and, moreover, he claimed that substantially the whole estate belonged to himself and that the deceased had no .property when she died, although there was standing in her name in three savings banks in Buffalo nearly $6,000. If he has succeeded in getting that money into his hands at all he must nave drawn and receipted for it as administrator of the estate. He has no interest in the estate to protect. His whole interest is against the estate. Under these circumstances he should not be allowed to remain administrator. (See Matter of West, 40 Hun, 291; affd., 111 N. Y. 687.) It is áaid that the respondent has given adequate security; that the ownership of the property in question can be settled by the surrogate upon the final accounting. We think the petitioner is entitled to have an administrator appointed who can, if so advised, bring suit against the respondent and have the controversy determined in a court where a trial by jury can be had, and that in the meantime the control of the whole estate should not be in the respondent's hands. The petitioner did not ask to be appointed administrator herself, but she ob3ected to her brothers being appointed, because she claimed they also would be unfriendly to her; An administrator should be appointed who will act impartially in the management of the estate, and if it is necessary to go outside the family to make such selection the surrogate should adopt that course. McLennan, Spring, Hiscock and Davy, JJ., concurred.