Summary
In Matter of Durban (175 App. Div. 688, 689) the court said: "Section 2624 of the Code of Civil Procedure, to the effect that a decree of probate must revoke former letters of administration, is only declaratory. If the probate decree should not say that the temporary letters are revoked, it is nevertheless plain that such temporary letters have been superseded."
Summary of this case from Matter of ConnellOpinion
October 6, 1916.
Alexander S. Bacon, for the appellants.
Nathan Schwartz, for the proponent.
Charles B. Dullea, for the respondent John A. Lynch.
The first ground raised here is that Mr. Apel's original appointment as temporary administrator revived on reversal of the probate, and hence there was no vacancy to be filled. I think this is unsound ( Matter of Choate, 105 App. Div. 356. See Code Civ. Proc. § 2555), and the confirmation of this view appears from the fact that all parties have acted on the firm idea that a vacancy existed to be filled. Section 2624 of the Code of Civil Procedure, to the effect that a decree of probate must revoke former letters of administration, is only declaratory. If the probate decree should not say that the temporary letters are revoked, it is nevertheless plain that such temporary letters have been superseded.
Furthermore, for the protection of sureties on a temporary administrator's bond, that office should be regarded as terminated, and the appointee as functus officio, upon the issue of regular letters. Otherwise a probate contest might continue extending over the period of an appeal to the Court of Appeals, and, on reversal, appellants' theory would restore the authority and rights to custody of a temporary administrator, possibly without additional security.
The other ground insisted on is that a stranger had been needlessly put into control, although Mr. Apel stood ready to act without further fees. But this liberality of Mr. Apel was a belated offer, not announced till June fifth, a week after Mr. Lynch had been appointed.
It is urged that the attorneys did not have proper notice. A temporary administrator is to meet an exigency calling for a conservator. Hence there are more elastic requirements as to service. If the attorneys who have already appeared are without the county, the surrogate may dispense with any notice to them (Code Civ. Proc. § 2602). Here are concerned two attorneys in Kings county and one with an office in New York county, where is also the special guardian. Hence none could demand notice as matter of right. Having before him two rival petitions, the surrogate could name a temporary administrator, and even choose one not "interested" (as appears from the contrasting wording of sections 2588 and 2596 of the Code of Civil Procedure), for such an ad interim office, rather than to give to either competitor the advantage of possession.
I advise that the orders of the Surrogate's Court of Richmond county be affirmed, without costs.
JENKS, P.J., CARR, MILLS and RICH, JJ., concurred.
Orders of the Surrogate's Court of Richmond county affirmed, without costs.