Power v. Burmester — 34 N.Y. St. Rep. 716

Majority

p. 716

John Power, Ex’r, Resp’t, v. Gertrude Burmester et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Executors and administrators—Appointment cannot be questioned COLLATERALLY.

Defendant renounced her right to administration, but was subsequently appointed administratrix after an appointment of the public administrator. Thereafter a will was found and probated, and letters thereunder were granted to plaintiff. She was ordered to pay over the moneys in her hands to plaintiff, and on refusal to do so this suit was brought on her bond. Held, that the surrogate having jurisdiction of the estate and her person, her appointment could not be assailed collaterally, and that her sureties ■w_re bound by the surrogate’s order fixing the amount of the defalcation..,

p. 717

Appeal by defendant John Speckman, from judgment in favor of plaintiff, entered upon trial by the court without a jury.

Action on an administratrix’ bond.

J. K Van Nostrand (Sawyer & Getty, of counsel), for app’lts; Lewis J. Conlan, for resp’t.

Dina Overbeck, a resident of the city of Brooklyn, died, as was supposed, intestate, in June, 1887. The defendant, Gertrude Burmester, was next of kin to deceased. She renounced her right to administration, and the public administrator was appointed in June, 1887. In July, 1887, the defendant Burmester presented a petition to the surrogate of Kings county, stating the death of Dina Overbeck intestate, that she was the only next of kin and resided in Kings county, and asked to be appointed administratrix. Letters of administration were issued to her, and the defendants Speckman and Towsma became her sureties. The administratrix Burmester, received a considerable sum of money as administratrix, which she refuses to pay over to the plaintiff, who was subsequently appointed the executor of the deceased, she, in fact, having left a will. The surety denies his liability because the appointment of Gertrude Burmester was void. The surrogate had jurisdiction of the estate and of the person of Mrs. Burmester. The appointment cannot be assailed collaterally. Kelly v. West, 80 N. Y., 139 .

The sureties are estopped from denying liability, the principal having, and without fraud, made the engagement Kimball v. Newell, 7 Hill, 116 .

The surrogate’s order fixing the amount of the administratrix’ defalcation bound the sureties as well as the administratrix. Scofield v. Churchill, 72 N. Y., 565 .

The judgment should, therefore, be affirmed, with costs.

Dvkman and Pratt, JJ., concur.