In re Robinson — 126 N.Y.S. 1144

Majority

p. 1144

In re ROBINSON.

(Supreme Court, Appellate Division, Third Department.

January 4, 1911.)

Headnote

• Appeal from Surrogate’s Court, Columbia County. In the matter of the application of Julia R. Robinson for letters of administration with the will annexed of the estate of Frances C. Robinson, deceased. From an order of the surrogate refusing the letters, said applicant and the residuary legatees appeal. Reversed, with instructions to issue letters.

The amendment of 1910 (Laws 1910." c. 585) to subdivision 1 of section 2643 of the Code of Civil Procedure, which amendment became effective after the decision of the surrogate, renders academic the questions discussed by counsel and simplifies the disposition of this case. All the parties to the proceeding have appealed from the order of the surrogate. No appointment of an administrator with the will annexed appears to have been made. Such appointment, when made in the future, will necessarily be controlled by the amendment of 1910. The order is therefore reversed, and the proceeding remitted to the surrogate, with instructions to issue letters of administration with the will annexed to the residuary legatees, and with costs to each party filing a separate brief herein, payable out' of-the estate.

COCHRANE, J., not voting.