191 A.D. 427 | N.Y. App. Div. | 1920
This appeal is from an order of the Surrogate’s Court of New York county vacating and annulling a prior order of said court made November 5, 1919, granting temporary administration of the estate of Theodore P. Shonts, deceased, to Milla D. Shonts, his widow. The sole basis of the order appealed from was therein stated to be “ that said order of November 5th, 1919, granting temporary administration on the Estate of Theodore P. Shonts, deceased, was made under the mistaken assumption by this Court that said Theodore P. Shonts died intestate. * * * ”
Theodore P. Shonts died on September 21, 1919, a resident of New York county, leaving the said Milla D. Shonts, of the city of New York, his widow, and Marguerite Amelia Bingham, also a resident of the city of New York, and Theodora d’Chaulnes, residing in Paris, France, daughters, his only heirs at law and next of kin him surviving. On November 3, 1919, the said Milla D. Shonts, widow of decedent, presented to the Surrogate’s Court of New York county her duly verified petition praying that temporary letters of administration be awarded to said petitioner. In her petition the petitioner alleged that she had “ made diligent search and inquiry for a will of said deceased and has not found any such will, nor had your petitioner obtained any information concerning any such will,” except that in or about the year 1904 the deceased had prepared, executed and exhibited to the petitioner a certain document which he stated to her was his last will and testament, and wherein the petitioner was practically the sole beneficiary, of the whereabouts of which will the petitioner was ignorant, and except that the petitioner “ subsequent to the death of the deceased, was informed that in or about the month of July, 1919, the said deceased
Among other grounds showing the necessity for the granting of temporary administration upon decedent’s estate said petitioner alleged that at the time of his death decedent occupied an expensive apartment in the city of New York under a lease which by its terms did not expire for about two years and that the estate would be hable for the annual rental thereof until the premises were surrendered; and that in the aforesaid apartment the deceased had a large and Valuable collection of furniture, and imported rugs and paintings of the value of upwards of $50,000, which, as petitioner was informed, had, without her knowledge and without any authority of any person competent to authorize, been removed from said apartment, and that unless immediate steps be taken to trace said property the same might be scattered and lost to the estate; and that other reasons, including attention to certain investments of the decedent, demanded immediate attention from some competent representative qualified to represent the estate.
Upon said petition the surrogate, on November 5, 1919, made an order granting temporary administration on the estate of said decedent to the petitioner, and that letters of temporary administration issue to decedent’s said widow upon her taking and subscribing the statutory oath, and executing a bond according to law in the penalty of $474,000. Such
On the same day, and also upon the petition of the said DeLancey Nicoll, the said surrogate granted an order requiring the said Milla D. Shonts to show cause why the order theretofore made granting temporary administration to her upon the estate of her deceased husband should not be wholly set aside, vacated and annulled, and why temporary administration upon said estate should not be granted to DeLancey Nicoll, Edward J. Berwind and the Guaranty Trust Company of New York, who were the executors named in said proposed will. The petition upon which said order to show cause was granted, after alleging that the order appointing the temporary administrator had been obtained “ through the practice of gross deception and misrepresentation,” referred specifically to the allegations in Mrs. Shonts’ petition for temporary administration, wherein she disclaimed knowledge of the alleged will, and alleged that prior to the filing of her petition there had been placed in her possession a copy of said will. The widow denied such allegations, and, I think, fully explained and justified the allegations contained in her petition for temporary administration with reference to the alleged will.
The learned surrogate in an opinion (109 Misc. Rep. 276) accompanying the order removing the widow as temporary administratrix, stated that she had been appointed “in a course of administration, and on the judicial proof and assumption that there was no will,” and that nothing further had been done “ in the proceeding based on an alleged intestacy;” that since, an executed will in writing had made its appearance and had been filed with a petition for its probate. Such “ tremendous fact ” in the opinion of the surrogate entirely altered the situation existing when Mrs. Shonts was named as temporary admin
The application for temporary administration was made and the same was granted by the surrogate pursuant to the provisions of section 2596 of the Code of Civil Procedure. That section, so far as is here pertinent, provides:
“ On the application of a creditor, or a person interested in the estate, the surrogate may, in his discretion, issue to one or more persons letters of temporary administration, in either of the following cases: ¡
“ 1. When for any cause, delay necessarily occurs in the granting of letters testamentary or letters of administration, or in probating a will. * * * ”
The allegations of the petition fully justify the surrogate in granting temporary administration pursuant to the Code provision. (Matter of Choate, 105 App. Div. 356.) While the petition praying for the annulment of the temporary-administration granted herein to Mrs. Shonts was predicated upon a charge of gross deception and misrepresentation by the widow, and which charge is not sustained by the facts, and while the order appealed from recites as the untenable • ground of annulment of the order granting temporary administration, that said order was made under a mistaken assumption by the court that decedent died intestate, in his opinion the learned surrogate states as the ground for vacating the order that “ When a will is produced in this court, with a petition for its probate, the jurisdictional requisite for an administration proceeding ceases ipso facto.” That the learned surrogate, under our practice, is in error in such assertion, and that temporary administration is proper in case of proceedings pending for the probate of a will, is at once apparent from a reading of section 2596 of the Code of Civil Procedure, subdivision 1 of which makes delay in granting letters testamentary a ground for temporary administration, and which, inter alia, then provides that “ an appointment of a temporary
It is plain that the application for the revocation of the order granting temporary administration herein was based upon subdivision 4 of section 2569 of the Code of Civil Procedure, which provides for such revocation where the grant of the letters or the appointment “ was obtained by a false suggestion of a material fact;” and upon subdivision 6 of section 2490 of said Code, which provides that the surrogate has power “ to open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud * * * or other sufficient cause.” But neither of said Code provisions justifies the action of the surrogate in the case at bar. The appointment of Mrs. Shonts was not “ obtained by a false suggestion of a material fact.” Her information as to the alleged will she frankly laid before the surrogate. Nothing was concealed. She had the right to treat the alleged will as a nullity, and the most that the petitioning executor claimed was that she had seen a copy of it. The allegations of her petition were ample to put the surrogate upon inquiry, and said temporary administration was granted with knowledge on the part of the surrogate of the existence of the alleged will.
In conclusion, I am of the opinion that the removal of Mrs. Shonts as temporary administratrix of the estate of her deceased husband was wholly unauthorized. She had been regularly and duly appointed and had duly qualified by taking the required oath and filing the security required by the order appointing her. No charge of disqualification or of official misconduct rested against her, and her removal was upon grounds not sustained by the facts. If at any time during her incumbency she becomes disqualified or is guilty of misconduct rendering her unfit for the due execution of her trust, the law provides prompt and ample means for her removal. Until that time arrives or until letters of administration or letters testamentary are issued she is entitled to administer said estate as provided by law.
The order of the surrogate vacating and annulling the order granting temporary administration should be reversed,
Clarke, P. J., Laughlin and Dowling, JJ., concur.
Order appealed from reversed, with costs, and order granting temporary administration reinstated. Settle order on notice.