
    Matter of the Application for Revocation of Letters of Administration upon the Estate of Robert N. Campbell, Deceased.
    (Surrogate’s Court, Erie County,
    October, 1907.)
    Executors and administrators — Appointment and qualifications, etc.: Procedure — Citation or notice — To nonresidents; Removal or substitution and revocation, etc.— Grounds.
    The phrase “ incompetent or disqualified by law,” as employed in subdivision 1 of section 2085 of the Code of Civil Procedure relating to the revocation of letters of administration, refers to the provisions of section 2661 and not to the effect of a subsequent application for letters by one having a prior right.
    Where the surrogate has exercised his discretion in dispensing with the citation of non-residents and has issued letters of administration to a creditor upon the appearance and consent of all parties to a proceeding therefor, and the administrator has qualified and given a proper bond, his letters” will not be revoked because in the petition a non-resident brother of tie decedent was alleged to be older and the decedent’s estate less than they were. Such erroneous statements do not constitute a false suggestion of material facts within the meaning of subdivision 4 of section 2G85 of the Code of' Civil Procedure.
    Application for revocation of letters of administration.
    Kellogg & Baker, for petitioner.
    George F. Schultz (Daniel J. Kencfick, of counsel), for administrator.
   Hart, S.

The decedent had been a successful practicing physician and well-known resident of the city of Buffalo for a number of years. During the latter years of his life he had given up the practice of his profession and lived an isolated life in comparative obscurity. The intestate died at the city of Buffalo on May 27, 1907, after an illness of short duration, unattended by any of his relatives or former friends.

A petition for administration upon his estate was filed with this court on May twenty-ninth by Dr. Edw. N. Pfohl, who had attended the deceased during his last illness, praying that letters issue to him as a creditor. At the time of the filing of the petition there appeared before me one Sammis,. a nephew, residing in Canada, the petitioning creditor, two attorneys, one of whom had been intimate with the deceased, and the undertaker, also a creditor. An inquiry was had into the facts and circumstances, it appearing that the deceased left surviving him relatives in Canada and one brother in California. All parties present joined in the application asking the appointment of Dr. Pfohl, and letters of administration were issued to him without the issuance of a citation. The surrogate exercised the discretion vested in him by section 2663 of the Code of Civil Procedure and dispensed with the issuance of a citation to the nonresident relatives. Subsequently the administrator appeared voluntarily and made application for modification of his official bond on account of the discovery of assets in excess of the amount alleged in the original petition, and appraisers were appointed at his request; also, an order directing the publication of a notice to creditors.

A petition for the revocation of letters of administration was filed in the latter part of July, 1907, in behalf of the brother, a resident of California. Upon the return day of the citation issued thereon, the administrator appeared and by counsel opposed the application. The petitioner asserts that there was a false suggestion of material facts made to the surrogate in the petition for administration, within the meaning of subdivision 4, section 2685 of the Code of Civil Procedure, in that the age of James Campbell was stated therein to be seventy-five years when in truth it was but sixty-two, and in that the value of the estate was estimated in the petition at $15,000 and is in fact $45,000. I do not regard tírese discrepancies as at all material, and the fact that James Campbell was thirteen years younger and the estate $30,000 greater would not have influenced my action in dispensing with citation to the nonresident relatives and awarding letters to Dr. Pfohl. The petitioner relies upon an interpretation of subdivision 1, section 2685 of the Code, citing’ Matter of Tyers, 41 Misc. Rep. 378. The cases are readily distinguishable. In the case cited the nonresident brother was diligent and had presented a petition; and, presumably, while procuring his bond, a zealous creditor anticipated him and secured letters which were subsequently revoked for obvious reasons. The administrator in this estate has been regularly appointed, has qualified, and is administering the estate with full protection to all persons interested. He has given a surety bond of a responsible company which reserves joint control of the funds of the estate.

The phrase “ incompetent or disqualified by law,” as used in section 2685 of the Code, I believe refers to the provisions of section 2661 of the Code, and not to the question of prior right of a nonresident to administer.

The application of the petitioner for revocation of lettprs is, therefore, denied.  