Majority
p. 40Marston vs. Paulding & Moore. 1842. October 31.
Headnote
A surrogate’s court has not jurisdiction to compel an administrator to deliver up property, to the owners thereof, which he has wrongfully taken possession of under color of his letters of administration, and claiming it as a part of the estate of the intestate.This was an appeal from a decretal order of the surrogate of New-York, denying an application of the appellant to compel the respondents, as administrators, to deliver over to him certain property which they had taken possession of, claiming that it belonged to the estate of the decedent.
J. L. Mason, for the appellant.
J. R. Lee, for the respondents.
It is not necessary to examine the question whether the property in controversy in this case was or was not rightfully retained by the respondents as a part of the estate belonging to the decedent. For if it belonged to the appellant, his proper remedy was in a different forum. For the surrogate has no jurisdiction, upon a summary application to him, to compel the administrators to deliver over property to the owner thereof, which property has been taken possession of by them as a part of the estate to be administered by them; although their claim to such property is wholly unfounded, or is merely colorable.
Order appealed from affirmed with costs.