Opinion
March, 1916.
Edward B. Bradley, for petitioner.
Olvany, Russell Ingle (George W. Olvany and Edward B. Schulkind, of counsel), for administratrix.
The petitioner for letters of administration was a sister of the intestate, who died unmarried, leaving a father, mother and several brothers and sisters. The public administrator renounced and letters issued to the sister who petitioned. The petition for letters stated that the intestate was a citizen of the United States. The application for revocation of her letters is brought under section 2569, Code of Civil Procedure, subdivision 4, and alleges that the administratrix wilfully and deliberately concealed the relationship of Mary Gannon to the intestate (not having included her in the next of kin), and falsely stated that there were no other persons interested in the proceeding except those mentioned in the petition for letters. Section 2588, Code of Civil Procedure, reads: "Administration in case of intestacy must be granted to the persons entitled to take or share in the personal property, who are competent and will accept the same, in the following order. * * *" Neither the administratrix nor her sister is entitled to share in this estate, and letters were issued to the sister who petitioned on the renunciation of both the public administrator and a resident brother. The administratrix denies that she deliberately omitted her sister's name among the next of kin. The petitioner in the proceeding for revocation, who is married, claims to be equally entitled with the administratrix, who is unmarried, to letters. Matter of Curser, 89 N.Y. 401, is authority for the priority of an unmarried female to a married female in the grant of letters of administration. Subdivision 4, section 2569 of the Code of Civil Procedure, reads: "4. Where the grant of his letters, or his appointment was obtained by a false suggestion of a material fact." The administratrix having a prior right (neither sister sharing in the estate and all prior parties having renounced) and the administratrix being unmarried ( Matter of Curser, supra), the surrogate was justified in issuing letters to her.
The surrogate revoked letters on the authority of Kerr v. Kerr, 41 N.Y. 272. In that case letters of administration were granted to the appellant upon representations made in her petition that she was the widow of the intestate. It was clearly shown that she had good reasons for believing that she was the widow and that when she married the intestate there were no obstacles on her part to such marriage and she knew of none on the part of the intestate. On an application to revoke her letters it was shown that the respondent, who was previously married to the intestate, was his lawful widow, as a judgment of divorce granted to the intestate before his alleged marriage to the appellant was void. Letters to the appellant were revoked by the surrogate, and this was affirmed on the ground that the representation of the appellant that she was the widow of the intestate was false in fact and none the less false because she believed it to be true. On reflection, I think Kerr v. Kerr, is not in point here, as the administratrix did not omit any of the relatives of the intestate who would have a prior right to letters. The petition for revocation alleges a deliberate omission, but this is denied in the administratrix's replying affidavit. In Matter of McDonald, 160 A.D. 86, the court held that the surrogate cannot revoke letters of administration where charges of misconduct are denied without taking evidence and making findings of fact. Motion for reargument granted, and the prior order to revoke letters vacated, but without prejudice to a new application to revoke the letters setting up further facts if desired.
Decreed accordingly.