In re the Estate of Kells — 19 Misc. 2d 511

Majority

p. 511

In the Matter of the Estate of Eleanor C. Kells, Deceased.

Surrogate’s Court, Kings County,

September 9, 1959.

Abraham J. Goldberg for petitioner.

Daniel G. Connolly and Harold W. Cohn for Public Administrator.

Maximilian Moss, S. This petition filed on April 17, 1959, by a first cousin of the decedent, seeks to supersede the Public Administrator to whom letters of administration were granted on December 23, 1958. The decedent died December 7, 1958. Several hearings thereafter held established the kinship of the petitioner as the decedent’s first cousin and that there are no persons bearing a closer degree of kinship to the decedent.

The discretionary power to refuse to supersede the Public Administrator (Surrogate’s Ct. Act, § 136-w) must be subordinated to the mandatory directions for the granting of letters of administration (Surrogate’s Ct. Act, § 118; cf. Matter of Taormina, 2 A D 2d 711 , affd. 2 N Y 2d 878 ). The Public Administrator is superseded and letters of administration heretofore issued to him are revoked. Letters of administration will issue to the petitioner upon qualifying according to law.

p. 512

He will be required judicially to settle Ms account within one year and to cite any and all unknown distributees of the decedent. No distribution is to be made by the petitioner until the entry of the decree on the accounting.

Settle order on notice.

Cases cited

In re the Estate of Taomina 2 A D 2d 711 N.Y. App. Div. 1956-06-25 p. 511
In re the Estate of Taormina 2 N Y 2d 878 N.Y. 1957-02-28 p. 511