In re Last Will & Testament of Hassett — 105 A.D. 356

Majority

p. 356

In the Matter of the Last Will and Testament of Sarah J. Hassett Choate, Deceased. Margaret G. Ronayne, Individually and as Executrix, etc., of Sarah J. Hassett Choate, Deceased, Appellant; James C. Bushby and Frank M. Dusenberry, as Executors, etc., of Sarah J. Hassett Choate, Deceased, Respondents.

Headnote

Decree admitting a will to probate and the issuance of letters testamentary there under— it terminates the power of a temporary administrator — stay created by an appeal from the decree — the surrogate may authorize the executors to act under section 2582 of the Gode of Oiril Procedure.

Opon the entry of a decree, admitting a will to probate and the issuance of letters testamentary to the executors nominated therein, a temporary administrator theretofore appointed becomes functus officio.

If an appeal be taken from the decree admitting the will to probate the surrogate may, under section 2582 of the Code of Civil Procedure, authorize the executors appointed by him to continue to act as such during the pendency of the appeal.

Quoere, whether the surrogate could, if he desired, confer such powers on the person who had formerly acted as temporary administrator instead of upon the executors.

Appeal by Margaret Gr. Ronayne, individually and as executrix, etc., of Sarah J. Hassett Choate, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate's Court on the 18th day of April, 1905, authorizing the respondents to act as executors of the will of said decedent within

p. 357

the limits specified by section 2582 of the Code of Civil Procedure, pending appeals from a decree admitting the said will to probate.

Roger Foster, for the appellant.

James O. Bushby, for the respondents.

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. "W e 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

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from should, therefore, be affirmed, with ten dollars costs and disbursements.

Present — O’Brien, Ingraham, McLaughlin and Hatch, JJ. Order affirmed, with ten dollars costs and disbursements.