Shook v. Goddard — 2 Dem. Sur. 201

Majority

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New York County.—Surrogate.

Hon. D. G. ROLLINS,

November, 1882.

Shook v. Goddard. In the matter of the estate of Francis O. J. Smith, deceased.

Headnote

Code Civ. Pro., § 2600, which, permits a surety in the official bond of an administrator, executor, etc., to apply for a release from responsibility for future breaches, does not apply to a bond executed in 1878.

It seems, however, that this and the next section effect no substantial alteration in the pre-existing law, contained in L. 1837, ch. 460, and its amendments.

Petition of Sheridan Shook, one of the sureties in the official bond of Charles W. Goddard, an executor of decedent’s will, for a release from responsibility for any further breach thereof. The facts appear sufficiently in the opinion.

I. A. Englehart, for petitioner.

I feel bound to grant the applica

p. 202

tion, whereby one of the sureties on the bond of decedent’s executor seeks to be relieved from responsibility on account of any future breach of the condition of such bond.

As that instrument was executed in 1878, I do not think that this petition comes within § 2600 of the Code of Civil Procedure. But the provisions of that section do not essentially differ from those of the statute of 1837 as amended in 1862, which continued to be in force until supplanted by the Code. Sections 29 to 32, inclusive, of chapter 460 of the laws of 1837 provided the means by which the surety on an administrator’s bond could obtain release from liability for subsequent breaches. These provisions were made applicable also to executors by chapter 229 of the laws of 1862.

An order may be entered directing, 1st, that within five days thereafter the executors give new surety to the satisfaction of the Surrogate, upon compliance wherewith this petitioner may be relieved from liability for any further act, default, or misconduct of the executor ; and 2nd, that, if such new surety be not supplied, the letters testamentary be revoked, and the authority of the executors forthwith cease (Lewis v. Watson, 3 Redf., 43; Stevens v. Stevens, 3 Redf., 507).