In re Dunn's Estate — 118 N.Y.S. 561

Majority

p. 561

(63 Misc. Rep. 180.)

In re DUNN’S ESTATE.

(Surrogate’s Court, New York County.

April, 1909.)

Headnote

Executors and Administrators (§ 32^[1] )—Revocation of Letters—Pendency of Other Proceeding.

The Surrogate’s Court, on a summary application to revoke letters of administration with the will annexed, will not pass upon a doubtful question as to the construction of the will, where the question is álso before the Supreme Court in a pending action; but the proceeding will be dismissed without prejudice to a renewal thereof after termination of that action.

[Ed. Note.—For other eases, see Executors and Administrators, Dec. Dig. § 32.^[1] ]

Application to revoke letters of administration of the estate of Ellen L. Dunn, deceased.

Proceeding dismissed.

See, also, 105 App. Div. 596 , 94 N. Y. Supp. 303 ; 118 N. Y. Supp. 560 . ^

Alfred B. Jaworower, for petitioner.

John T. Eenlon, for administratrix cum testamento annexe.

Among the supplementary papers submitted by the parties, which reached me after the filing of my previous memoran-dum of decision, I find a copy of the will of the decedent. An examination of that will satisfies me that it is not at all clear that the real property in question was devised to the two children of the decedent as tenants in common, as alleged in the petition in this proceeding, and that it may be that a proper construction of the paper requires the conclusion that the devise was to the executors for purposes of sale, coupled with a mandatory power to sell and divide the proceeds, thus leaving the legal title in the executors, bound by trusts, in all respects as if it had forthwith been converted into personalty. This question is before the Supreme Court for decision in the pending action for partition, and I should not, upon this summary application to revoke the letters cum testamento annexo of the administratrix with the will annexed, embarrass that tribunal by attempting to pass upon it.

The proceeding will therefore be dismissed, without prejudice to renewal thereof after the termination of that action.