Power v. Bermester

12 N.Y.S. 25, 34 N.Y. St. Rep. 716, 58 Hun 607, 1890 N.Y. Misc. LEXIS 3529

Opinion

Barnard, P. J.

Dina Overbeck, a resident of the city of Brooklyn, died, ■as was supposed, intestate, in June, 1887. The defendant Gertrude Bermester was next of kin to deceased. She renounced her right to administration, and the public administrator was appointed in June, 1887. In July, 1887, ttlie defendent Bermester presented a petition to the surrogate of Kings county, stating the death’of Dina Overbeck intestate, that she was the-only next of kin, and resided in Kings county, and asked to be appointed administratrix. Letters of administration were issued to her, and the defendants Speekman and "Towsma became her sureties. The administratrix Bermester received a considerable sum of money as administratrix, which she refuses to pay over to the plaintiff, who was subsequently appointed the executor of the deceased, she in fact having left a will. The surety denies his liability, because the appointment of Gertrude Bermester was void. The surrogate had jurisdiction of the estate and of the person of Mrs. Bermester. The appointment cannot be assailed collaterally. Kelly v. West, 80 N. Y. 139. The sureties are es-topped from denying liability, the principal having, and without fraud, made ‘the engagement. Kimball v. Newell, 7 Hill, 116. The surrogate’s order Axing the amount of the administratrix’s defalcation bound the sureties as well as the administratrix. Scofield v. Churchill, 72 N. Y. 565. The judgment should therefore be affirmed, with costs.