Opinion
February 25, 1952.
Order of the Surrogate's Court, Rockland County, dismissing a proceeding to remove an ancillary executor reversed on the facts, without costs, and matter remitted to the Surrogate's Court for the purpose of having it determine, pursuant to its equitable powers under subdivisions 2 and 3 of section 40 of the Surrogate's Court Act, and after a hearing, if deemed necessary, whether the ancillary executor should be removed. The charges presented, to which no answer has been made, are of such a serious nature as to warrant the Surrogate in making inquiry and determination of his own volition. The domiciliary executor may participate in such proceeding as a matter of comity. ( Kirkbride v. Van Note, 275 N.Y. 244, 250.) Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.