
    Matter of the Estate of Seabury Treadwell, Deceased.
    (Surrogate’s Court, New York County,
    March, 1902.)
    Administration with the will annexed — Revocation of renunciation —> Revocation of letters for improvidence — Right of beneficiary to administer — Notice — Code C. P. §§ 2685, subd. 2, 2644.
    A renunciation of a right to administer with the will annexed may be withdrawn by permission of the court before it has been used and letters should not be revoked merely because prior to appointment such a renunciation had been executed by the appointee.
    The fact that a certain trust in real estate has, while in :his hands, greatly diminished in value and income does not of itself show that he has a tendency to improvidence, within Code C. P. § 2685, subd. 2, relative to the acts and conduct which disqualify an administrator, and cannot alone justify revocation of his letters.'
    Under a will devising a testator’s real estate equally to his’seven children and to a trustee for the eighth for life, with remainder over to his issue, the beneficiary has the same right to appointment as administrator with the will annexed as has each of the other children, and as all are in the same class and no one of them is, as to the others, entitled to a preference in appointment as being residuary legatee, the surrogate may appoint the beneficiary administrator with the will annexed without notice to the others.
    
      Application to revoke letters of administration with the will annexed.
    Blandy, Mooney & Shipman and Rastus S. Ransom, for petitioner.
    Gantz, Meier & McKennell, for respondent.
   Thomas, S.

Letters of administration with the will annexed were issued to the respondent on an ex parte application made by him, the persons named in the will as executors being dead. The petitioner asks that such letters be revoked, basing her application on several grounds. It is insisted, in the first place, that some months prior to the granting of the letters in question the respondent executed a formal renunciation of any right to administer. This paper, upon its face, was intended to be used to enable the petitioner to be appointed, jointly with a third person; it is dated March 8, 1900. Mo attempt seems to have been made to act upon it, it was never filed in this court, and the letters to the respondent were not issued until December, 1900. Such a renunciation may always be withdrawn, by permission of the court, before it is used (Code Civ. Pro., § 2639; Matter of Haug, 29 Misc. Rep. 36), and it has been held that it is a mere waiver, subject to a legal right of retraction at any time prior to rights having vested upon the faith of it. Casey v. Gardiner, 4 Bradf. 13; Matter of Wilson, 92 Hun, 318, 322. If my permission were necessary to validate such retraction it would, under the circumstances, be granted, and the letters should not be revoked on the ground of such renunciation having been executed. It is also contended that the respondent is “ improvident ” within the meaning of the statute (Code Civ. Pro., § 2685), and, therefore, unfit to act as administrator. The only proof offered on this head concerns the management of certain real estate in Brooklyn conveyed to the respondent, as a trustee upon a trust in which he himself is a life beneficiary. All of his acts, as such trustee, have repeatedly been examined by the Supreme Court without disapproval. The property has greatly diminished in value, and has not been so productive of income as was anticipated, but nothing in the history of this unfortunate investment would justify a finding that the respondent has a mental tendency towards improvidence of a degree that would legally disqualify him to administer upon an estate. The right of the respondent to letters is also challenged. By the terms of the will the residuary estate, after payment of certain legacies and subject to a life estate of the widow, since deceased, was devised and bequeathed, one-eighth part to each of seven of his children, and the remaining one-eighth part to his executors, in trust to apply the income thereof to his son, the respondent, for his life, with remainder to his child or children, and, failing such child or children, to the descendants of the testator. Upon these facts the respondent, as beneficiary of the trust of one-eighth of the residue, had an equal right to administer with each of the other residuary legatees. Matter of Roux, 5 Dem. 523; Matter of Thompson, 33 Barb. 334, affd., 28 How. Pr. 581. Ho one of these persons was, in strictness, a residuary legatee, entitled to a preference in administration over the others, but they are remaindermen or general legatees and to be classed together. Quintard v. Morgan, 4 Dem. 168. In the discretion of the surrogate letters could lawfully be issued to any one of the persons entitled, without citing the others having only equal claims, and that was done in this case. Code Civ. Pro., § 2644; Matter of Wood, 17 N. Y. Supp. 354; Matter of Richardson, 8 Misc. Rep. 140; Matter of Lasak, 8 N. Y. Supp. 740, affd., 121 N. Y. 706. The facts were sufficiently set out in the petition and no deceit was practiced on the court. ■ The respondent has given security in an amount not suggested to be insufficient. The application is denied.

Application denied.  