172 Misc. 271 | N.Y. Sur. Ct. | 1939
Edward J. McCullough is admittedly a distributee of this estate and as such possessed a chose in action in the form of a right to compel its due administration according to law. Upon appointment, his receiver in supplementary proceedings became vested with this right pursuant to an assignment by operation of law (Matter of Leverich, 135 Misc. 774, 782; affd., on opinion of this court, 234 App. Div. 625; Matter of Ziemba, 165 Misc. 853, 857), and as such assignee the latter is entitled to petition for the appointment of an administrator d. b. n. (Matter of Kassam, 141 Misc. 366, 368; affd., 235 App. Div. 609; Matter of Jordan, 202 id. 710, 711.)
The petitioner himself does not seek appointment in this capacity, nor is he so entitled in the absence of failure to accept the office by those entitled to preference in this regard.
Ten days from the publication of this decision will be accorded to the children of the deceased within which to come forward and claim the right to appointment. In the event of their failure so to do within the prescribed period, letters will issue to the public administrator, or, in the event of his renunciation, to the petitioner. Proceed in conformity herewith.