In re Pye — 18 A.D. 309

Majority

p. 309

In the Matter of the Application of Isaac E. Pye and Others, Respondents, for the Revocation of Letters Testamentary Issued to Erastus Van Houten, Appellant, upon the Estate of Edward G. Van Houten, Deceased. No. 2.

Headnote

Revocation of letters testamentary — reversed where the ground of such revocation was in part erroneous.

An order revoking letters .testamentary upon the ground, in part at least, that the executor had failed to account, at the instance of creditors of the testator, for profits realized by him in carrying on a livery business, for which it has been determined on appeal that he was not bound to account, will be reversed without prejudice to the rights of the creditors to renew their application for such revocation of the letters.

Appeal by Erastus Van Houten from an order of the Surrogate’s Court of the county of Rockland* entered in the office of said Surrogate’s Court on the 18th day of January, 1897, revoking the letters testamentary theretofore issued to him upon the estate of Edward G. Van Houten, deceased.

Garrett Z. Snider, for the appellant.

John M. Perry, for the respondents.

The order revoking the letters appears to have been founded in part upon the refusal of the eXeeuter to account for the profits realized by him in carrying on the livery business. While we do not hold that there may not have been sufficient 'cause, other than that, to permit the surrogate to make the order, it cannot be seen that such fact did not have some or a 'Controlling influence upon- the result. And as we determined, upon review óf the surrogate’s decree in the accounting proceeding, that the executor was not required to- account for such profits, the order appealed from, so far as it revokes his letters' testamentary,, should be reversed, without prejudice to the right of the respondents to renew the application for the revocation of them. Let the proceeding be remitted to the Surrogate’s Court to proceed therein. ■

All concurred. ■

■ The order, so far as it revokes appellant’s letters testamentary, reversed, with ten dollars costs and disbursements, and without prejudice to the right of the respondents to renew the ajiplication for the revocation of the letters, and the proceeding remitted to the Surrogate’s Court to proceed therein.