37 Misc. 584 | N.Y. Sur. Ct. | 1902
Letters of administration with the will annexed were issued to the respondent on an ex parte application made by him, the persons named in the will as executors being dead. The petitioner asks that such letters be revoked, basing her application on several grounds. It is insisted, in the first place, that some months prior to the granting of the letters in question the respondent executed a formal renunciation of any right to administer. This paper, upon its face, was intended to be used to enable the petitioner to be appointed, jointly with a third person; it is dated March 8; 1900. ¡No attempt seems to have been made to act upon it, it was never filed in this court, and the letters to the respondent were not issued until December, 1900. Such a renunciation may always be withdrawn, by permission of the court, before it is used (Code Civ. Pro., § 2639; Matter of Hang, 29 Misc. Rep. 36), and it has been held that it is a mere waiver, subject to a legal right of retraction at any time prior to rights having vested upon the faith of it. Casey v. Gardiner, 4 Bradf. 13; Matter of Wilson, 92 Hun, 318, 322. If my permission were necessary to validate such retraction it would, under the circumstances, be granted, and the letters should not be revoked on the ground of such renunciation having been executed. It is also contended that the respondent is “ improvident ” within the meaning of the statute (Code Civ. Pro., § 2685), 'and, therefore, unfit to act as administrator. The only proof offered on this head concerns the management of certain real estate in Brooklyn conveyed to the respondent, as a trastee upon a trust in which he himself is a