Opinion
June, 1918.
Stoddard Mark, for petitioner.
Davies, Auerbach Cornell, for respondent.
This is an application by the executor of a deceased administratrix for an order directing a trust company to pay over to the former the amount of a bank deposit in the name of the deceased administratrix as such. If the petitioner is correct in his contention, then it follows that although a person appointed administratrix is required to qualify by filing an undertaking her personal representative, who might be an executor without bonds, could reduce to possession and administer upon the decedent's estate without filing security of any kind.
The bank deposit created the relation of debtor and creditor between the trust company and the deceased administratrix. Matter of Franklin Bank, 1 Paige, 249; Critten v. Chemical National Bank, 171 N.Y. 219. Section 121 of the Decedent Estate Law (Laws of 1909, chap. 18; Consol. Laws, chap. XIII), provides that "An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof, as such executor." Under this section it has been held that an executor or administrator of the deceased executor or administrator is merely a temporary custodian of such part of the unadministered estate of the first testator as may come into his hands, and as he has no power to compel a delivery to himself he is under no duty to assume possession. Matter of Hayden, 204 N.Y. 330. In Matter of Duncan, 181 A.D. 91, the Appellate Division, first department, in December, 1917, said: "The accountants are the executors of an executor and as such seek the judicial approval of the accounts of their testator, and relief from the custody of the property left unadministered by him. Of such property they are merely the custodians, possessing with respect thereto none of the executorial powers and functions which appertained to their testator as executor. * * * They are not the successors of their testator as executor and have no power either to collect or to distribute the estate. Such power would be vested in an administrator c.t.a., if one were appointed." In my opinion this applies equally to the executor of an administrator, except that the power in that case would be vested in an administrator d.b.n. The Code (§ 2606) specifically provides that when all administrators die the surrogate must grant letters of administration d.b.n. to one or more persons as their successors, and that the proceedings to procure the grant of such letters are the same, and the same security shall be required as upon an original application.
It follows that the claim against the trust company cannot be enforced by the executor of the deceased administratrix but must be collected or litigated by one entitled to administer upon the estate of the decedent, that is, by an administrator d.b.n.
The fact that under section 2725 the successor of the deceased administratrix may account for acts and doings of the decedent and for the trust property which has come into his possession, or into the possession of the decedent, does not confer upon the court the right at this time to order the payment of the bank account in question, nor does it invest the executor of the deceased administratrix with the right to administer upon the decedent's estate. If, when the accounting is concluded, the surrogate finds that a distribution in whole or in part can be made to the parties entitled thereto, he may make a decree accordingly. Code Civ. Pro. § 2725. This provision was intended by the revisers to give the surrogate power to order distribution without the intervention of a successor (Report of the Revision Committee to the Legislature dated February 9, 1914, p. 250), but I do not read it as authorizing me to grant the order prayed for.
The application to direct the present payment to the petitioner must be denied.
Application denied.