Atkinson v. Striker — 2 Dem. Sur. 261

Majority

p. 261

New York County.—Surrogate.

Hon. D. G. ROLLINS,

October, 1883.

Atkinson v. Striker. In the matter of the estate of Margaret Emmons, deceased.

Headnote

One seeking to procure the removal of an executor or administrator for failure to pay over income bequeathed to the former by the testator, must wait until the expiration of the year specified in Code Civ. Pro., § 8717, subd. 3.

Allegations, in a petition for the removal of an executoror administrator, of facts enumerated in Code Civ. Pro., § 3683, if made upon information and belief, must disclose the sources of the information and the grounds of the belief.

Petitioy of Emily J. Atkinson, daughter of decedent, and a beneficiary under her will, for tike revoca

p. 262

tion of letters issued to Elsworth L. Striker, as administrator with the will of decedent annexed, after the death of the executor thereof, upon the ground of the non-receipt of income due petitioner, and of malice, misconduct .and irresponsibility of the said administrator. •

David M. Kellogg, for petitioner.

H. Thompson, for administrator.

So far as concerns the petitioner’s complaint that she has not been paid moneys to which she claims to be entitled under the will of this decedent, it is apparent, by reference to § 2717 of the Code, that the respondent is not at fault. Letters testamentary were not issued to Joseph M. L. Striker until February of the present year, and it was not until July 5th, last, that the respondent was granted letters of administration with the will annexed.

Such of the matters as are claimed to justify the removal of the respondent under § 2685 are, in the main, alleged upon information and belief. Their existence is positively denied by the answer. I think that, before taking any proofs on the issues thus raised, I must require the petitioner to state the sources of her information and the grounds of her belief. She is allowed ten days from the date of service of a copy of an order to be entered on this decision to supplement her petition in the manner suggested; otherwise this proceeding to be dismissed.