10 Misc. 211 | N.Y. Sur. Ct. | 1894
This is an application for the appointment of a temporary administrator upon, the ground that the necessary delay in this case in the granting of letters testamentary arising from the contest of the will requires the exercise of such power of appointment by the surrogate. The Code provides for the appointment of a temporary administrator “ where delay necessarily occurs in the granting of letters testamentary or letters of administration in consequence of a contest;” and it may be granted “ on the application of a person interested in the estate.” Code, sec. 2610. Of course, it is not every case of delay that will warrant the exercise of the power of appointment. There is necessary delay in every case of contest, and yet the condition of an estate may he such that it would be manifest that no possible harm or inconvenience could result from the delay to the parties interested. The question, then, arises, is there anything in the character or condition of this estate that the necessary delay in granting letters (or having some person authorized to
But it is answered, assuming all this to be true, the tenant in common in occupation of the premises is willing to waive his right as owner, and to stipulate to pay rent as tenant under his former lease. But the proposed stipulation is hardly broad enough under the facts, since it is claimed by the applicant that the tenant has extended his occupation to other rooms of the house (which is or may be adapted for use of two families), so that practically his occupation amounts to an occupation of the entire premises, while the stipulation to pay rent only covers one tenement or portion of the house. But if it may be assumed
This brings us- to the next question in the case. It is insisted by the executors and proponents of the will that (if a temporary administrator must be appointed) the executors named in the
For the reasons above stated I am satisfied that a temporary administrator, who is disinterested, should be appointed, and, if the parties will name a suitable person, I will appoint him; otherwise, I will select a person for the office myself.
Ordered accordingly.