2 Redf. 100 | N.Y. Sur. Ct. | 1874
The first point made by the proponents of the will and codicil and the petitioners in this case is, that there was at the time of the appointment of Mr. Keator, no contest existing, and that until such contest, no collector can be appointed to take charge of the estate.
The 23d section of the statute of 1837, (3 R. S. 160., §. 38,) provides, “ in case of a contest relative to the proof of a will, or relative to granting letters testamentary, or of administration, in case of intestacy, or when, by reason of absence from this state, of any executor named in a will, or for aivy other cause, a delay is necessarily produced in granting such letters, the Surrogate mithorized to grant the same may in Ms discretion issue special letters of administration, authorizing the preservation and collection of the goods of the deceased.”
I think this objection of the proponents not well taken. Had the legislature stopped with providing for the appointment of a collector in cases of contest over wills, or over the granting of letters of administration in cases of intestacy, there would have been plausibility in the argument now made by the counsel for the proponents ; but when the law adds, “ or for any other cause, a delay is necessarily produced in granting such letters, the Surrogate authorized to grant the same may in his discretion issue special letters, &c.,” it. gives authority for the appointment in all cases, where for any
In this case the Surrogate had issued his citations on the 23d of December, returnable February 16th, nearly two months thereafter. The petition on which the collector was appointed stated that on the return of the citations, the heirs and next of kin, including the petitioner, intended to oppose the probate of the will and codicil, and that a lengthy contest would ensue—which has been verified by a litigation of over three months, and the end is apparently still in the distance.
Here was between $300,000 and $400,000 with no one to protect or preserve it during the contest, or even during the two months before the contest should begin. I think there can be no question that the Surrogate had power to appoint a collector or special administrator in this case, and that it was a very proper case for such appointment.
The next objection taken by the proponents is that no notice was given to the executor’s name, in the will and codicil, of the application for the appointment of Mr. Keator. This I consider as the important question involved in the motion to vacate Keator’s appointment.
The act of 1864, (chapter 71, sec. 11,) provides as follows: “no person shall be appointed collector or special administrator in accordance with the said 23d section, as amended by this act, except on a notice in writing, of at least ten days, to every person who has appeared in the proceedings before the Surrogate, to be served in the manner provided by the code of procedure for the service of notices in actions ; nor until such person has filed the security required by law, which shall not be filed until the sureties thereto have justified before the said Surrogate, which justification shall be on the like notice of ten days, to be served as herein above provided.”
It will be seen that this amendment lets the original section stand as formerly, and only adds the above provision to it.
By sec. 7, ch. 782, of the laws of 1867, (vol. 2, p. 1928,) sec. 10, of ch. 71, of the laws of 1864, above cited is repealed, only retaining the provision: u but no letters of collection shall be issued to any person incompetent to actas such executor. ” This repeal leaves sec. 23, of the laws of 1837, first above quoted, in full force, with the addition last above quoted, from the laws of 1867, added thereto.
The question is, does section 11 of the laws of 1864, apply to the original section 23, with the amendment thereto repealed, with the same force and effect as it did before the amendment was repealed, or did the repeal of the amendment to that section at the same time in effect repeal ¿section 11. I have carefully examined these amendments, and have come to the conclusion that section 11 of ch. 71, laws of 1864, is still in force and applies to section 23, of laws of 1837, and that where the executors or other persons interested in the will have appeared before the Surrogate, it is necessary that they have the notice of 10 days of an application for the appointment
The executors claim that Mr. Crandall should be appointed as collector during the pendency of the proceedings, which is resisted by the next kin. It is claimed by the next of kin, in opposition to his appointment, that he received nearly all the property of the deceased, before his death, and while he was incompetent to do any business, and that there was a large amount of government bonds owned by the deceased which are unaccounted for, and that an impartial person should he appointed who will investigate and obtain such bonds and other property, and preserve the same during this litigation. I have very carefully considered this question, and have consulted the authorities upon this subject, and have come to the conclusion that the proper rule is laid down in the case of Mootrie v. Hunt (4 Bradf 173). That was a contest over a will. The Surrogate ofEew York had decided in favo; of the will, and had admitted it to probate. The amount of the estate was claimed by the next of
This case is directly in point; it is a case of less
The motion to vacate the appointment of Hr. Keator, is granted. The motion to appoint Judge Crandall is denied. As there is no other motion before me for the appointment of any particular person as collector, that is left for future consideration whenever the proper motion shall be made.
Order entered accordingly.