p. 576In the Matter of the Application of The Lawyers Surety Co., of New York, to be Relieved from Further Liability on the Bond of Mary F. Hanifin, Administratrix, etc., of Margaret McCormick, Deceased.(Surrogate’s Court, New York County,Headnote
Sale or Real Estate — Release or Surety on Bond.A surrogate’s court has no authority, under section 2600 of the Code, to release the surety on a bond given by an administrator under an order directing the sale of real estate to pay debts.
Application by The Lawyers’ Surety Company, of New York, to be relieved from further liability on the bond of an administratrix, given under an order entered December 15, 1897, directing the real estate of decedent to be sold for the payment of debts.
Norwood & Dilley, for petitioner; Ronald K. Brown, for administratrix.
The application of the petitioner to be released as surety upon the respondent’s official bond as adminis-tratrix is granted, conditioned upon the filing of a bond with new sureties, within five days from the service of the order herein upon her or her attorney, in default of which letters will be revoked. As to the application made for the release of the surety from the obligation of the bond given by the respondent under section 2766 of the Code of Civil Procedure, I doubt whether, notwithstanding the general language used in section 2600, its provisions apply to such a bond. The penalty prescribed by section 2601, in the event that new sureties are not furnished, is the revocation of the respondent’s letters. This would be appropriate where the sureties are on a bond required in order to obtain or retain letters and to continue the management and custody of the estate, but not in a case like
p. 577tbe present one. Tbe proposed order does not contain any provision for sncb revocation, but one for vacating tbe decree for the sale of tbe decedent’s real estate in case new sureties ai’e not furnished. I know of no authority for such a direction here. As tbe ultimate object of proceedings under section 2600 is to procure tbe release of tbe surety from responsibility •on account of any future breach of tbe conditions of the bond, and in this case it is shown by the answering affidavit, and not denied by the petitioner, that no breach of the condition of this bond has occurred or can possibly occur in the future, and as the duties, to secure the faithful performance whereof by the principal the bond was given, are now impossible of performance, no direction for the filing of a new bond would be proper.
Application denied.