148 Misc. 158 | N.Y. Sur. Ct. | 1933
The sole refief herein sought is an injunction against the collection by the executor of this estate of certain moneys now on deposit in the office of the city chamberlain of the city of New York. The affidavit upon which the order to show cause was based alleged the recovery of certain judgments against the decedent; that they are valid and outstanding claims owned by the moving party and that the executor, who is alleged to be a non-resident, has, pursuant to the terms of the will, given no bond. The affidavit further expresses a belief that, if the executor were permitted to obtain possession of these moneys, the claimants might be without redress should he fail to account for them. No basis for any such belief is set forth, and there is certainly no presumption that any such unlawful action would be taken by him. On the contrary, there is a presumption of his honesty until some showing to the contrary is made. The orderly administration of this estate requires the fiduciary to reduce its assets to possession, and nothing in this application would appear to justify an interference with such customary procedure. The second subdivision of section 97 of the Surrogate’s Court Act is inapplicable, since it is addressed merely to a situation which might arise prior to the grant of letters testamentary. Even were it applicable, however, no demonstration has here been made which would warrant a determination by the court that the assets of the estate were not secure in the hands of the respondent. If it can be shown that such a situation exists, the proper procedure for ✓ the petitioner is to bring an application under subdivision 6 pif % section 99 of the Surrogate’s Court Act for the revocation of the letters testamentary. In this connection the court fully concurs with the pertinent portions of the opinion of Mr. Surrogate Henderson (147 Mise. 99), on a similar application made to him respecting these same moneys.
The present application is, therefore, denied, with costs, and the stay will be vacated. Proceed accordingly.