2 Bradf. 334 | N.Y. Sur. Ct. | 1853
On an allegation that he was a creditor of the estate, and that the deceased left no last will and testament, letters of administration were granted to Marcus P. Ferris, on the fourth day of January last. John and Ann Holland, in'the right of the latter as sister and one of the next of kin of the deceased, apply for the revocation of the letters of administration, on the ground that Mr. Claxton did not die intestate. The evidence shows that in August, 1848, he had a will among his papers, and some of the provisions of the instrument are proved; but there is nothing to indicate that the will was in his possession or unrevoked at the time of his death. Mrs. Jackson, who took possession of his papers, is now beyond the jurisdiction of the court; and there seems at
Where administration has been granted, and an existing will, or a will lost or fraudulently destroyed, is alleged but not proved, it is generally improper to revoke the letters. There is no assurance that proceedings will be instituted to establish the instrument, and no reason why, pending such proceedings if instituted, the estate should be unrepresented. If the parties desire to prosecute their claim, the court whose power shall be invoked for that purpose, and having jurisdiction of the proof of lost wills, can afford every proper protection against acts of the administrator injurious to the persons claiming to be legatees or devisees. The application to revoke the letters of administration must be denied.