Opinion
November 13, 1961
In a proceeding in the Surrogate's Court in which the two coadministrators of decedent's estate, who are brother and sister and decedent's only distributees, seek to have each other removed as a coadministrator, the sister appeals from an order of the Surrogate's Court, Kings County, dated March 27, 1961, which: (1) removed her as coadministrator of decedent's estate; (2) directed her to convey the estate assets to the remaining administrator, her brother; (3) directed her to account; and (4) directed her to comply with a stipulation of settlement. Said order was entered upon the report of a Referee who found that the sister had failed to comply with a stipulation of settlement made upon the record before him in open court, which provided for her removal in the event of her noncompliance therewith. Order reversed on the facts and in the exercise of discretion, without costs, and the matter remitted to the Surrogate's Court for further proceedings. In our opinion, upon all the facts disclosed by this record it was an improvident exercise of discretion to refuse to permit the sister to withdraw the stipulation of settlement which her counsel had placed upon the record the previous afternoon. Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.