11 Mills Surr. 41 | N.Y. Sur. Ct. | 1913
This is an application to revoke letters of administration granted by this court to the Metropolitan Trust Company upon the estate of Alexander McDonald, deceased. The petition for revocation is made by Laura McDonald Stallo, granddaughter of the decedent and one of his next of kin.
Alexander McDonald died intestate on the 18th of March, 1910. At the time of his death he was a resident of this county. His granddaughters, Laura McDonald Stallo and Helena McDonald Stallo, were his only next of kin. Both of them were infants at the time of his death. Their father, Edward K. Stallo, was appointed their general guardian, and on the 89th of April, ,1910, letters of administration upon the estate of Alexander McDonald were issued out of this court to the said Edward K. Stallo. Subsequently and on the 18th of October, 1910, letters of administration were issued to the Metropolitan Trust Company of New York as coadministrator with Edward K. Stallo. On December 83, 1910, the letters issued to Stallo were revoked and the Metropolitan Trust Company has since acted as sole administrator of the estate of Alexander McDonald, deceased.
It is also alleged in the petition, and not denied in the answer that the Metropolitan Trust Company, as administrator, charged on its books the sum of $33,701 as commissions for making the said sales. Before the filing of the petition, however, this error was corrected, so that at the time of the filing of the petition the assets of the estate in the hands of the trust company as administrator were not diminished by this amount.
The petition further alleges that prior to the maturity of the said note the petitioner, with her father and sister, called
If the Metropolitan Trust Company, as payee of the note for $2,700,000 and pledgee of the securities deposited with it to secure payment of the note, agreed to renew the note for two years, as stated in the petition, its sale of the securities before the maturity of the note as so renewed resulted in a loss to the estate of over $1,000,000. Therefore the right of the estate of Alexander McDonald to the difference between the amount realized upon the sale of the securities and the amount for which they could have been sold at the time of-»the expiration of the renewed note is dependent upon the determination of the issue raised by this allegation in the petition and its denial in the answer.
At the time that letters of administration were issued to the Metropolitan Trust Company in conjunction with Edward K. Stallo, the company was not, independently of the consent of Stallo, entitled to such letters. They were granted by the surrogate in the exercise of the discretion vested in him by section 2660, Code of Civil Procedure, when it appeared by the petition submitted to him that the person entitled to letters consented that the trust company be made coadministrator with him. But as the letters were granted to the trust company in conjunction with Stallo, not because of any independent right which the trust company had to such letters, but because of the consent of the person who was entitled to be appointed ad
Subdivision 1 of section 3685 of the Code provides that an application may be made for the revocation of letters “ Where the executor or administrator was, when letters were issued to him, or has since become, imcompetent, or disqualified by law to act as such; and the grounds of the objection did not exist, ® * * upon the hearing of the application for letters.” It is not contended that the Metropolitan Trust Company is incompetent to act as administrator within the meaning of the word “ imcompetent ” as defined in section 3661 of the Code. It therefore remains to be determined whether, because of facts that have developed or action which it has taken since the issuance to it of letters of administration, it has become disqualified to act as administrator of the estate.
At the time that letters of administration were issued to the trust company the note for $3,TOO,000 was not due and none of the securities pledged for the payment of the note had been sold. It held the securities in its capacity of pledgee, but it-claimed no interest in them apart from its lien as such pledgee. Therefore at that timé the trust company neither had nor claimed any interest in the estate adverse to the interests of the next of kin. But after letters of administration had been granted to the trust company, and while it was acting as sole administrator of the estate, it sold as pledgee the securities pledged with it for the payment of the note made by the decedent, and paid to itself as administrator the balance realized from the sale in excess of the amount required for the payment of the note. The next of kin now allege that the Metropolitan Trust Company, as pledgee, had agreed to extend the time for the payment of the note from December 8, 1910, to December 8, 1913, and that in violation of this agreement the trust com
It would therefore appear that because of the facts that
Either of the reasons given above would seem to me to be sufficient to warrant the revocation of the letters heretofore issued to the Metropolitan Trust Company as administrator of the estate of Alexander McDonald, deceased.
As the facts upon which I base my decision are not controverted, it is not necessary to submit findings of fact and conclusions of law. Settle order on notice revoking letters of administration to the Metropolitan Trust Company as administrator of the estate of Alexander McDonald, deceased, and directing an accounting of its proceedings as such administrator.
Decreed accordingly.