Estate of Nesmith — 15 N.Y. St. Rep. 436

Majority

p. 436

In the Estate of Louis A. Nesmith, deceased.

(Surrogate’s Court, New York County,

Filed November 14, 1887.)

Headnote

1. Practice—Bond of administrator with will annexed—Amount. •

Where an administrator with will annexed is appointed to succeed another administrator, the amount of the bond that may be required is not limited by the penalty of the bond of the administrator who is succeeded.

2. Same—What decided on proceedings to fix amount of bond—Power. OF SURROGATE TO SUPPLY OMISSIONS IN WILL. '

The will directed that a certain legatee be paid a legacy of “ one thousand,” the word dollar not being used .by the testator. Held, that the. testator’s intention to use the word was apparent on the face of the will,.

p. 437

and that the court had full jurisdiction to supply the omission. That on a proceeding to fix the amount of the bond of the administrator, the surrogate could not construe the word “ dollars” into the testator’s will, but it is proper to assume that it will be so construed in fixing the amount of the bond.

J. K. Hayward, for F. M, Nesmith; George Putnam Smith, for John McGowan, adm’r.

—The will of this decedent having been admitted to probate, and it having been heretofore decided that Mary D. Nesmith is entitled to letters of administration c. t. a., I am now asked to fix the amount of the administration bond.

Before probate of the will, letters of administration, as in case of intestacy were issued to Frank M. Nesmith. It is claimed that he had fully administered the estate before his letters were revoked by reason of such probate.

By one of the provisions of the will a legacy is given to Martha Manderson, which legacy it is admitted has not been paid.

It is true that the administrator c. t. a. cannot recover from any of the decedent’s next of kin the moneys which have been paid to him or her by the former administrator, but it is by no means clear that a judgment for the full amount of Mrs. Manderson’s legacy may not be recovered against such former administrator.

It is insisted that because he gave bond in the sum of $400 only, the penalty of the bond which can now be exacted should not exceed double that amount. It is true that no recovery can be had against the sureties on the $400 bond in excess of that sum, but the claim against the administrator is not thus limited.

It is further insisted that Mrs. Manderson has no interest in this estate, because of an alleged uncertainty appearing on the face of the will. The will directs that she be paid a legacy of “one thousand.” The word dollars is not used by the testator. It was held by the Chancellor, in Snyder v. Warbasse ( 3 Stock., 463 ), that the omission of the word “dollars,” under circumstances similar to the present, was palpably a mistake of the scrivener; that the testator’s intention to use that word was apparent on the face of the will, and that the court had full jurisdiction to supply the omission. The respondent is correct in his insistence that in the present proceeding the surrogate cannot construe the word “dollars” into this testator’s will; but in fixing the penalty of the bond of the administrator c. t. a., it is proper to assume that the petitioner’s contention in this regard may be upheld.

I hold, therefore, that bond must be given in the sum of $2,000.