37 Misc. 710 | N.Y. Sur. Ct. | 1902
Application by Mary E. Molloy and- by John H. Chite for letters of administration with the will annexed on the estate of Margaret Olnte.
The will of Margaret Olnte was probated in this court as a will of personal property only on the 4th day of February, 1902. By its terms the will gives all of the personal estate to Mary E. Molloy a friend, but not a next of kin of deceased, and' does not name an executor. The deceased left no husband and her only next of kin are nephews tad nieces residing in Virginia, for whom the attorney for the petitioner Clute appears and who favor his appointment.
The petitioner Molloy claims to be entitled to administer as a matter of right as being the sole legatee named in the will; the petitioner Clute claims to be entitled to administer by reason of an alleged assignment by Mary E. Molloy to him of all her right, title, and interest under the will of deceased accompanied by a renunciation of her right to administer. Upon the hearing Mrs. Molloy filed a retraction of her alleged renunciation.
The first question then is whether of not a person who is primarily entitled to be appointed administrator with the will annexed and who has renounced such right, has an absolute right to retract such renunciation. The second question is', if it shall be decided that she has not such right of retraction, will she be allowed to exercise it in a case where it is accompanied by an assignment of all her right under the will.
The third question is, if it shall be determined that she cannot retract in such a case, whether or not such an assignment and renunciation were made, to what extent the surrogate has jurisdiction to pass iipon the validity of such papers where they are attacked, as in this case, as being procured by fraud.
If all of these questions are decided against the contention of Mrs. Molloy, can Clute receive letters in this case ?
Upon the first question, the absolute right of retraction of a. renunciation, the cases do not seem to go so far as to hold that
In Matter of Baldwin, 27 App. Div. 506; 50 N. Y. Supp. 872, an executor was not allowed to retract his renunciation made in open court, the court saying, “ the statute expressly declares that its acceptance rests in the discretion of the surrogate.” In Matter of Hang, 29 Misc. Rep. 36; 60 N. Y. Supp. 382, the court “ decided to permit a retraction of the. renunciation to he made.” From these and other eases it appears that the courts have not yet been willing to commit themselves to the adoption of a rule that in all cases there is an absolute right of retraction of renunciation by an executor or administrator, but rather that the filing of a retraction can become effective only by the permission and in the discretion of the surrogate exercised with reference to the facts shown in each particular case.
If Mrs. Molloy has no absolute right of retraction, should she be permitted to retract in this particular case? The facts appearing upon the hearing are substantially as follows: Margaret Clute died December 20, 1901, at the home of Mary E. Molloy in the city of Albany, N. Y., where she had kept a rented room for several years prior to her death which she
Notwithstanding this renunciation and this assignment, Mrs. Molloy now claims the right to administer this estate as residuary legatee, and by virtue of them Mr. Gluts claims the right to administer. On this application Mrs. Molloy filed a written retraction of the renunciation and sought to attack the assignment as being procured by fraud. Such evidence as the parties desired to produce bearing upon the circumstances of the execution of these papers has been received because they were part of the same transaction, and the surrogate has discretionary power to permit a retraction of a renunciation, and if such renunciation was procured by fraud it would be his manifest duty to allow the same to be retracted. The evidence does not show that the renunciation was procured by fraudulent means or that it was not the free and intelligent act of Mrs. Molloy. It appears that she had competent lawyers whom she requested Mr. Brown to consult, but it does not appear that she took the trouble to consult them herself, although the first visit was made on December twenty-second and the papers were not finally signed until the thirty-first day of December. On the last visit, Mrs. Reed, a friend of Mrs. Molloy’s, was present and Mr. Gass asked particularly that she should remain and she was present during all of the conversation and at the time of the execution of the renunciation. Mrs. Molloy testified on the hearing that she had seen Mrs. Reed about a'week before the hearing, but she was not sworn as a witness. Mrs. Molloy also testified explicitly that the two papers were read over to her carefully and that she understood them.
Whether or not the assignment was procured by fraud cannot be passed upon by the surrogate as an independent proposition. Matter of Randall, 152 N. Y. 508.
A party may waive a statute and even a constitutional provision made for his benefit, and having once done so cannot afterward ask for its protection. Matter of Cooper, 93 N. Y. 507.
For a valuable consideration paid to her in cash Mrs. Molloy wiaived her statutory right to administer and sold and assigned all her right, title and interest in the Olute personal estate, and she ought not now to be allowed to retain the cash avails of the transaction and at the same time repudiate her renunciation and be authorized by this court to have the control and management of the' property which she has sold. The application of Mrs. Molloy for letters is denied.
The only other applicant for letters is John F. Clute. By virtue of the assignment filed in this court on the 20th day of January, 1902, he is presumptively the owner of and entitled to the whole personal estate of Miss Olute, having succeeded to the rights of the sole legatee named in said will. Section 2643
In addition to the sole property rights and interests which Mr. Clute has in this estate he also has on file in this court a Written consent of all the next of kin of deceased that letters with the will annexed be issued to him. These next of kin have also appeared by attorney in this matter in the effort to de-feat the granting of letters to Mrs. Molloy and to procure the granting of letters to Mr. Clute.
Letters of administration with the will annexed m'ay, therefore, he issued to John F. Clute upon his taking the usual oath and filing a bond in the penal sum of $3,000.