In re the Application for Temporary Letters of Administration of the Estate of Durban

Headnote

Matter of Durban, 175 App. Div. 688 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 6, 1916, which affirmed an order of the Richmond County Surrogate’s Court appointing a temporary administrator of the estate of Martha E. Durban, deceased. Pending a contest of the will of decedent, the executor named therein was appointed temporary administrator. Thereafter the will was admitted to probate and letters testamentary issued to said executor. On appeal to the Appellate Division the probate was reversed and a new trial granted. Thereafter the surrogate by the order here under review appointed a stranger to the will temporary administrator. This order is claimed to be void for two reasons: First, there was no vacancy in the temporary administratorship, and secondly, the surrogate was without jurisdiction, in that the order was granted without “due process of law” in that the common-law and statutory requirement of notice was not given to anybody.