
    Matter of the Estate of Ellen L. Dunn, Deceased.
    (Surrogate’s Court, New York County,
    April, 1909.)
    Executors and administrators — Rights and liabilities between representative and estate — Items charged or credited — Rents and proceeds of land.
    An administratrix with the will annexed who is also a tenant in common with another, of certain real estate devised hy the will, cannot he called to account by the surrogate for rents collected.
    Application to revoke letters of administration.
    Alfred B. Jaworower, for petitioner.
    John T. Fenlon, for administratrix cum, testamento annexo.
    
   Thomas, S.

According to the undenied averments of the petition the incompetent, whose committee is the petitioner, and the respondent are owners as tenants in common in equal shares of a parcel of real estate in this city, their titles having been acquired by devises contained in the will of the decedent. The respondent is also administratrix with the will annexed of the estate of the decedent. The respondent has for years collected the rents of said real property, and has from time to time accounted to the petitioner for the share of the incompetent. The present application is to revoke -the letters of administration with will annexed on the ground that the respondent has not promptly accounted for all of said rents. Upon the facts stated the relief asked for cannot he granted. The respondent as an administratrix has no right to or control over the rents of the devised real property, but by virtue of her legal rights as a tenant in common she was entitled to collect the rents, and she cannot he called to account therefor before a surrogate. Matter of Spears, 89 Hun, 49.

The application must he denied.

Application denied.  