27 A.D. 506 | N.Y. App. Div. | 1898
The Code permits a person, named as executor in a will to renounce the appointment, and provides the manner in which such renunciation may be made, which is by a written instrument, “ signed by . him, and acknowledged or proved, and certified in like manner as a deed to be recorded in the county.” (Code Civ. Proc. § 2639.)
The same section permits a party who has thus renounced to retract his renunciation, “ by a like instrument, at any time before letters testamentary, or letters of administration with the will annexed, have been issued to any other person' in Ms place; ” or, in certain contingencies, even after such letters have been issued ; and in case a retraction is thus made, the surrogate is invested with discretionary power to issue letters testamentary to the person making it. . ' '
It is not contended that the appellant either renounced or retracted his renunciation in the formal manner provided by the statute above cited, but it does appear—■ and as to this there is no dispute — that he did declare in open court his intention-not to' serve as one of -the executors of the testator’s will; that such declaration was accompanied by the request that letters of administration with the will annexed be issued to him and Oscar B. Stratton, and that the declaration thus made was accepted by the'surrogate and all
An oral stipulation entered into between parties or their attorneys in open court has been generally regarded as just as obligatory as though reduced to writing and executed with every legal formality (Jewett v. Albany City Bank, Clarke Ch. 242; Banks v. Am. Tract Soc., 4 Sandf. Ch. 438; Staples v. Parker, 41 Barb. 648; People v. Stephens, 52 N. Y. 306); and we think that when the appellant informed the surrogate of Steuben county that he did not intend to accept the trust conferred upon him, and this statement was accepted and acted upon, his renunciation was quite as complete and efficient as it would have been had it been strictly in accordance with the directions contained in . the statute. That the appellant entertained this same view is evident from the fact that he subsequently petitioned the surrogate; to be relieved from his stipulation, on the ground that he had entered into the same unadvisedly. This course was unquestionably the proper one for him to have pursued under the circumstances, and, consequently, the only matter with which we are called upon to deal pertains to the refusal of the surrogate to grant the relief prayed for.
As has already been shown, a person who has renounced as executor may, under certain circumstances, and upon certain conditions, retract his renunciation, and if the renunciation is not in writing, we see no reason why the retraction should be. But in whatever form it may be made, the statute expressly declares that its. acceptance rests in the discretion of the surrogate (Code Civ. Proc. § 2639); and when the right to retract in any case is denied by the surrogate, we do not see how the appellate court can interfere, unless it is made to appear that the. court below has exercised in some improper way the discretionary power with which the statute has invested it. (Barry v. The M. L. Ins. Co. of N. Y., 53 N. Y. 536.)
If there has been any abuse of discretion in this particular case the record fails to disclose it. On the contrary, we think the learned surrogate was amply justified in denying the executor’s application. In the first place, it was not made until three months after the petitioner had been fully informed of the position in which he had placed himself by his renunciation. In the meantime the contest
• The decree of the surrogate should, therefore, be affirmed.
All concurred, except Geeen, J., dissenting.
Decree of the surrogate affirmed, with costs.
