Opinion
June, 1905.
Roger Foster, for the appellant.
James C. Bushby, for the respondents.
Present — O'BRIEN, INGRAHAM, MCLAUGHLIN and HATCH, JJ.
Pending the determination of proceedings which resulted in a decree admitting this will to probate and rejecting a later one presented by the appellant, a temporary administrator was appointed. Upon the entry of the decree of probate, letters testamentary were issued to the respondents herein, being two of the three executors named in the will; they qualified as such, entered upon their duties and were so engaged when the appellant and certain special guardians served notice of appeal from the probate decree.
The effect of this appeal was to suspend the functions of the executors, and with a view of preserving the estate pending such appeal, they applied for and obtained from the surrogate this order conferring upon them limited authority under section 2582 of the Code of Civil Procedure. The appeal from the decree, by suspending the functions of the executors, made it necessary that some one should be appointed to take charge of and preserve the estate, and we do not agree with the appellant's contention that these duties should of necessity have been again confided to the temporary administrator who had been originally appointed while the proceedings relating to the probate of the will were pending. We cannot assent to this view, for the reason that, in our opinion, upon the issuance of letters testamentary, the temporary administrator theretofore appointed became functus officio, and the surrogate could not continue the temporary administrator after the issuance of such letters. Whether the surrogate, when the appeal from the decree of probate was taken, could have again appointed the person or corporation, who formerly had acted as temporary administrator, to preserve the estate during the pendency of such appeal, it is not necessary for us to determine, the question being as to his right, under the section of the Code of Civil Procedure referred to, to grant to these executors the limited authority therein provided for.
We think he had such power, and that the order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.