In re the Administration with the Will of Depau — 1 Tuck. Surr. 290

Majority

p. 290

The Administration with the Will of Francis Depau.

Headnote

■ The power'of the Surrogate to'appoint an administrator with the will • annexed, in case of the death of all the executors, is not repealed or affected hy the act of 1863, which authorizes the Supreme Gbúrt - - to appoint a receiver pf the estate in such an' event,- -

' H. Richardson and J. C, Van Loon,/or Püb: Adrni: '

ViviiDt-Lvoir ««d-Samuel^.'LvbN,'/or Legatee».-- ■ '

p. 291

. The Public .Administrator presented his petition to the Surrogate, setting forth the death of -Francis -Depau, probate of his will, and the issuing of letters testamentary • to the executors; and that all the executors.are deceased, ■ leaving assets unadministered to a large amount, and praying for the issuing of letters of administration cum testamento anneseo to the petitioner as Public Administrator in the city of FTew York. ,

Amelia Fowler, one of the legatees and devisees under the will, appeared and opposed the grant of letters to the Public Administrator, and filed with the Surrogate a , certified copy of an order made at a Special Term of the Supreme Court, on the 16th- day of May, 1863, which recited that the Supreme Court had, after the death of the last surviving executor, taken upon itself the control and management of the estate of Francis- Depau, deceased, and had made various orders concerning the same; and that since the making .of said orders an act of the Legislature had been passed authorizing the -Supreme Court to appoint receivers of estates with the power of administrators with the will annexed; and it ordered that Philo T. Ruggles. be appointed receiver of said estate, to give security in $40,000,. and' to file his inventory with. the clerk of the Supreme Court-. - - - .,

The question in the case at bar is whether the act of 1863, authorizing the appointment of receivers of the estates of deceased persons by the Supreme Court, repeals the jurisdiction of the Surrogate to appoint administrators with, the will annexed upon those estates. The following is the text of the act:

■ Chapter' 466. " •

. -Ah act to amend the. forty-fifth section of Article. Third, Title Second-, -Chapter Sixth,- -of Part-Third of the Revised Statutes, passed May 7th,. 1863 (three-fifths being present), .without the. approval of the Governor,

p. 292

... Section 1. The forty-fifth. section of article third, chap.ter sixth, part second, title second of the Revised Statutes, is hereby amended .by adding thereto, as follows :■ • . ■

“ But where, either by actions or proceedings in partition or division, or for the construction of a last will and testament, an estate has been brought within the possession, direction, or control of the Supreme Court of this State, which shall have . acquired jurisdiction . oyer the same, .such Supreme Court may,’upon the death of the surviving executor of said will and testament, and during the pendency of such' action or proceedings, and until they are finally carried into effect, appoint a receiver of said estate, upon such terms and conditions, and upon- such notice to all parties and persons interested, as said Court shall direct, and upon such order as to security or otherwise as to said Supreme Court may seem expedient; and to enable it tó' carry into effect its'orders and décfees m "relation to said estate, such receiver'when' appointed shall be the successor in interest of said, surviving executor, and-shall have like power and authority as administrators with ¡the Will-annexed,-appointed by-the Surrogate, but "subject to the orders of said Supreme Court in. the premises. . i “ § 2. This act shall take effect immediately,”

■, The Revised Statutes provide: “ If all such-executors or administrators :shall die, * - the Surrogate shall issue letters of 'administration upon the goods, chattels, credits and effects of the deceased, .left mnadministered, With the will annexed, * ^ " *' to the widow, or next of kin, ' or creditors of thé" deceased, in the same manner .as hereinbefore, directed,, in relation- .to original letters, of administration, (3. JR. S., -5th' ed., p. ■ 162, •§ 45.)

It will be noted that , the language here'.used is cqm~ pulsory.. The Surrogate is not at liberty to refuse to •issue these . letters oh the happening of the specified contingency... He “shall issue, letters.”- If he do not, he may be. mandamused to do so, by any Justice of the. Supreme Court,- at Chambers, . _ -. .,

p. 293

T'do not see that this act of 1863 repeals the provisions of the Eevised Statutes. It provides for a receiver to do the samé things and have thé same power and authority as an administrator with the will; but it does not prohibit or declare unlawful the Surrogate’s appointment of an administrator in- such a case. It is still made the duty of the Surrogate to appoint administrators with the will,-where the executors are all dead; and if by this means two sets of officers are appointed to care for the same property, that inconvenience is the fault of legislation, not of" the judicial officers, who must obey it.

Letters granted to petitioner.