Matter of Clark

3 Citing cases

  1. Stolz v. New York Cent. R.R. Co.

    7 N.Y.2d 269 (N.Y. 1959)   Cited 34 times
    In Matter of Stolz (7 NY2d 269 [1959]), the Court of Appeals observed that, in enacting (in 1920) Surrogate's Court Act §§ 99-101 — the predecessors to SCPA 711 (1), SCPA 712, and SCPA 713, respectively — the Legislature recognized that "revocation of letters calls for the exercise of a discriminating discretion by the Surrogate" (id. at 273), and that "each particular case [should] be judged by its own peculiar circumstances and conditions and disposed of in the words of the statute 'as justice requires'" (id. at 273-274 [citing Matter of Clark, 136 Misc 459 [Sur Ct, Otsego County 1930]]).

    The fourth situation enumerated is: "Where the grant of his letters, or his appointment was obtained by a false suggestion of a material fact." Under the express language of section 101, the revocation of letters is purely discretionary (see Matter of Clark, 136 Misc. 459; Matter of Chinsky, 159 Misc. 591, 596; Withrow, New Surrogates' Code [Supp. to Redfield's Jessup's Surrogates' Practice, 7th ed.], p. 92).

  2. Matter of Gould

    17 A.D.2d 401 (N.Y. App. Div. 1962)   Cited 7 times

    By statute (Surrogate's Ct. Act, § 101) the removal of a trustee or the revocation of letters issued to him is purely discretionary. ( Stolz v. New York Cent. R.R. Co., 7 N.Y.2d 269, motion for reargument denied 7 N.Y.2d 995; Matter of Clark, 136 Misc. 459.) In the exercise of his statutory power the Surrogate dismissed the petition.

  3. In re Petition of the Attorney Gen. of State

    2016 N.Y. Slip Op. 31686 (N.Y. Surr. Ct. 2016)

    Contrary to movants' argument, in a proceeding to revoke letters issued to a person who was ineligible at the time the letters were issued (see SCPA 711 [1]), revocation is not mandatory. Rather, upon the return of process, the court "may make a decree suspending, modifying or revoking the letters issued to or removing the respondent or modifying the terms of his appointment or may dismiss the proceeding upon such terms as justice requires" (SCPA 713). In Matter of Stolz (7 NY2d 269 [1959]), the Court of Appeals observed that, in enacting (in 1920) Surrogate's Court Act §§ 99-101 — the predecessors to SCPA 711 (1), SCPA 712, and SCPA 713, respectively — the Legislature recognized that "revocation of letters calls for the exercise of a discriminating discretion by the Surrogate" (id. at 273), and that "each particular case [should] be judged by its own peculiar circumstances and conditions and disposed of in the words of the statute 'as justice requires'" (id. at 273-274 [citing Matter of Clark, 136 Misc 459 [Sur Ct, Otsego County 1930]]). Here, the court must determine facts which are now in dispute, specifically, whether Mr. Karst deliberately misled the court, before the court can exercise such discretion.