
    In the Matter of Proving the Last Will and Testament of Henry Poillon Dunham, Deceased, as a Will of Real and Personal Property. George L. Doty, Appellant; Bertha F. Dunham Myers, Respondent.
    First Department,
    December 18, 1914.
    Executors and administrators —right of executor to withdraw his objections to a will and to join in petition for probate thereof.
    Where an executor after being granted leave to withdraw from a petition for probate and to file objections thereto, discovers that the will is entitled to probate, he should be granted leave to withdraw his objection and to again join in the petition for probate, especially where no letters have been issued and the will will not be presented for probate unless he is permitted to join in the petition.
    
      Appeal by G-eorge L. Doty from an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on'the 26th day of June, 1914, denying his motion for leave to withdraw his objection to the probate of the will of Henry Poillon Dunham, deceased, and to join in the petition for the probate thereof.
    
      Henry M. Earle, for the appellant.
    
      John Willett, for the respondent, Bertha F. Dunham Myers.
   Laughlin, J.:

The testator appointed the appellant and Henrietta V. Carll executor and executrix of his last will and testament and they duly petitioned for the probate thereof on the 7th day of October, 1912. On the 24th of January, 1913, the appellant applied, on the advice of counsel, to the Surrogate’s Court for an order striking his name from the petition as one of the petitioners for the probate of the will, and for leave to file objections thereto. The motion was granted and the order was entered and filed accordingly on the 24th of March, 1913. On the 1st of April, 1913, the appellant filed objections to the probate of the will, principally on the ground that the decedent left a prior will and that the execution of the later will was obtained by undue influence, and that it was doubtful whether the decedent was then of sound and disposing mind. It áppears that appellant was unable to find the prior will and that he has become satisfied that it was destroyed by or under the direction of the decedent prior to the execution of the later will; and that appellant is now convinced that the decedent was competent to make the later will, and that there was no ■ fraud, undue influence or duress practiced upon him.

An affidavit made by the widow of the decedent was read in opposition to the motion showing that she filed objections to the probate of the will; that when the hearing was about to be brought on she and the executrix, who is the principal beneficiary under the will, arrived at an agreement by which the will was to be withdrawn from probate and it was to be conceded that the decedent died intestate and that letters of administration were to be issued to her and she was to pay the principal beneficiary under the will the sum of $2,500; that this settlement was approved by the special guardian of the infant daughter of the executrix who took an interest in the remainder under the will; that the change of attitude on the part of appellant was instigated by Thomas 0. Dunham, a brother of the decedent, who is an intimate friend of the'appellant, and whose purpose was to procure the co-operation of the appellant as such executor in the management of the corporation known as “ Thomas 0. Dunham, Inc.,” which was controlled by Dunham, but in which the decedent was a stockholder to the extent of sixty shares; that Dunham has entered into an agreement to share in the interest of the principal beneficiary under the will and that the purpose of the application of the appellant was to defeat the settlement negotiated between the widow and the executrix and others; that the appellant has frequently admitted to her that the decedent lacked testamentary capacity and that the will was executed through undue influence and should not be admitted to probate, and that he expressed approval of said settlement; that the appellant has no interest under the will except the bequest of a pair of cuff buttons which she is willing he should receive and that the decree appointing an administrator shall so provide.

It further appears by the affidavit of the executrix that she has agreed to withdraw her application for the probate of the will, and has effected a settlement with the parties in interest, including Dunham, who contested the probate, other than the appellant; but Dunham denies that she has effected a settlement with him, and it appears that an infant was interested under the will and it is not shown that the interests of the infant do not require the probate of the will.

The learned surrogate doubtless denied the application on the theory that the appellant has not acted in good faith, and while there is some evidence tending to sustain that view, it is not conclusive, and the appellant contends, in effect, that he is desirous of performing his moral duty to the decedent of endeavoring to have the will probated. The settlement which has been negotiated between the executrix and some of the parties in interest affords no justification for the denial of the motion. It appears that one of the parties in interest, at least, denies that he agreed to the settlement, and another appears to be or to have been an infant. The appellant, as an executor named in the will, was entitled to present it for probate and to demand that it be probated if the Surrogate’s Court found on due proof that it was validly executed.

I am of opinion that the application should have been granted. The renunciation by the appellant was not executed as pi-escribed by section 2639, now 2628, of the Code of Civil Procedure; but it cannot be more effective than if it had been so executed. That section provides that a person named as executor may renounce the appointment by executing and filing an instrument as therein prescribed, and that Such a renunciation may be retracted by a like instrument, at any time before letters testamentary, or letters of administration with the will annexed, have been issued to any other person in his place; or, after they have been so issued, if they have been revoked, or the person to whom they were issued has died, or become a lunatic, and there is no other acting executor or administrator. Where a retraction is so made, letters testamentary may, in the discretion of the surrogate, be issued to the person making it. ”

It was held in Matter of Baldwin (21 App. Div. 506) that this section confers discretionary power on the surrogate, and that the court on appeal will not interfere with his discretion unless it appears to have been improperly exercised. For the purposes of this appeal we may assume, without further considering the point, that to be the correct rule, and still the order cannot be sustained, for the proper exercise of judicial discretion, if there be any discretion, on these facts required that the executor be permitted to revoke his withdrawal from the petition for probate. The Code provisions are mere statutory enactments of the common-law rule by which an executor had a right to withdraw or revoke a renunciation at any time before letters were issued, or at any time thereafter when the estate was without a lawful administrator. (Matter of Suarez, 3 Dem. 164; Robertson v. McGeoch, 11 Paige, 640; Codding v. Newman, 3 T. & C. 364.) No letters have been issued and the will has not been admitted to probate in the case at bar, and it is manifest that the will will not be presented for probate unless the appellant is permitted to withdraw his objections to the application for the probate thereof and to proceed with the application. It is not a question, therefore, as to who shall administer the estate, but whether the will of the testator is to be respected and given effect. The conduct of the appellant in withdrawing from the probate proceedings and filing objections thereto and in subsequently asking to be restored to his original position is doubtless subject to criticism; but he is on the right tack now, and, therefore, the motion should have been granted.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Clarke, McLaughlin, Scott and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without -costs. 
      
      See Laws oí 1914, chap. 448.—[Rep.
     