
    (2 Misc. Rep. 291.)
    In re GOVAN'S ESTATE.
    (Surrogate’s Court, Westchester County.
    February, 1893.)
    1. Ancillary Administrators—Increasing Bond—Application by Creditor.
    Where ancillary letters are granted to executors of a foreign will, and a resident creditor of the estate petitions for an increase of their bond to double the amount of the alleged indebtedness of such estate to resident creditors, the surrogate court cannot try the question of such indebtedness, but must regard the claim of petitioner, though disputed, as sufficient to entitle her to make the application.
    2. Same—Measure of Penalty—Discretion of Court.
    Code Civil Proc. § 2699, provides that, before ancillary letters can be issued, the persons to whom they are awarded must qualify as prescribed in section 2667. Section 2667 requires an administrator to give bond in a penalty not less than twice the value of the personal estate of the deceased, except that the penalty of the bond may, in the discretion of the surrogate, be in a sum not exceeding twice the amount which appears to be due from the decedent to residents. Held that, where ancillary administrators have qualified by giving bond in an amount exceeding the assets in New York, they will not be required to give additional security, in a penalty six times greater than the amount of such assets, and double the amount of the debts due resident creditors.
    
      Petition by Harriet Govan for an order requiring Henry F. Smith, and James H. Groom, as ancillary administrators of the estate of" one Govan, deceased, to give additional security on the ground that the estate owed her $240.
    Petition denied.
    The will of deceased was admitted to probate in Connecticut, where Smith and Groom qualified as executors. On application by them, showing that there were assets of the estate, not exceeding $100 in value, in Westchester county, H. Y., and that the estate was indebted to a resident of New York in the sum of $60, they were appointed and duly qualified, as ancillary administrators in New York, by giving bond in the sum of $120.
    I. J. Beaudrias, for petitioner.
    F. X. Donoghue, for executors.
   COFFIN, S.

This court cannot try the question of the alleged" indebtedness, but must regard the claim of the petitioner, although disputed, as sufficient to entitle her to make an application of this, character, nevertheless the prayer of her petition must be denied.. She asks for a bond in a penalty of $600; the admitted debt being $60, and her claim $240, making $300,—the half of the proposed" penalty. She does not claim that the value of the assets in this state exceeds $100, which is the amount stated in the petition for-the letters. How, by section 2699 of the Code, before such letters can be issued, the persons to whom they are awarded must qualify as prescribed in section 2667, to wit, by giving a bond in a penalty not less than twice the value of the personal estate of the deceased,except that the penalty of the bond may, in the discretion of the-surrogate, be in a sum not exceeding twice the amount which appears to be due from the decedent to residents of the state. This, discretionary power was exercised in this case. It would seem that unless the surrogate exercise this discretion the penalty of the bond should be twice the amount of the value of the assets in this state,, and then, in this case, the penal sum would have been $200. It would be absurd to hold that the legislature intended that where-the amount of the assets was only $100, and the amount of the debts $5,000, the executors should give a bond in the penal sum of" $10,000. The amount of the penalty of an administrator’s bond is fixed, not with regard to the debts the intestate owed, but the-value of his personal estate. The only object of the bond here is. to secure the creditors to the extent of the value of the assets.. The prayer of the petition is therefore denied, with $10 costs of the motion.  