In re the Substitution of Attorneys for Durban

Majority

p. 898

In the Matter of the Substitution of Attorneys for George A. Durban, Respondent, in the Following Entitled Proceedings: In the Matter of the Judicial Settlement of the Account of Gustave E. Apel, as Temporary Administrator, etc., of Martha E. Durban, Deceased. In the Matter of the Judicial Settlement of the Account of Gustave E. Apel, as Executor, etc. In the Matter of the Probate of the Last Will and Testament of Martha E. Durban, Deceased. Lillian Richter, Appellant.

Mr. Durban’s assignment to his stepdaughter of April 26, 1916, was between parties already cited into the Surrogate’s Court, and signed during the pendency of the probate proceedings. It purported to pass rights under the will if admitted, or, if the will be rejected, then to cover all Mr. Durban’s interest, as husband and as next of kin, in the distribution of the estate. We cannot say that to take testimony as to the execution, delivery and validity of this assignment would be beyond the surrogate’s powers, as enlarged by the Code of Civil Procedure, section 2510. As we read the order, it does not contemplate passing on the question of any subsequent breach thereof, in case it should be found that the purported assignment had a valid inception. Order of the Surrogate’s Court of Richmond county affirmed, but without costs. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred.