
    In the Matter of the Application of John G. Sanford for Letters of Administration on the Estate of John A. or Anthony Barnes, Deceased. In the Matter of the Application of Mary Morris and Eliza J. Barnes, Respondents, for Leave to Intervene; John G. Sanford and Others, Appellants.
    
      Beference in a Surrogate’s Ooy.rt-4o take proof of death’—what evidence justifies a-finding that theperson is dead— when the exact time Of death should notoe stated at a date seven yea/rs after the person was last heard from — what renunciation of the-right to letters may be retracted — not if acted upon ,by others.
    
    Evidence given on a reference to take proof on án application made in 1903 for letters of administration upon the estate of one Barnes, to the effect that. Barnes was- last heard from in 1876 or 1877, and that subsequent to the death. in 1883 of a person who had bequeathed a legacy to Barnes, a diligent, but unsuccessful-search was made to • ascertain. .the-lattér’s whereabouts, is sufficient to justify a finding that Barnes had died prior to the application for letters of administration.
    'The referee should not, however, fix the date of Barnes’ death as of January 1, 1885, to wit, at the expiration of seven years from January 1, 1878, and the decree of the surrogate granting the letters of administration should refuse to confirm the referee’s report in this respect.
    A party having a prior right to letters of administration upon the estate of^a decedent, who renounces such right in favor of a person having a subsequent right, where such renunciation is not evidenced or filed as required by section 2663 of the Code of Civil Procedure, may be permitted by the surrogate to retract such renunciation.
    
      .Semble, that if an oral renunciation be acted upon by the parties, it will become binding.
    Appeal by John Gr. Sanford and others from a decree of the ¡Surrogate’s Court of the county of Ne~w York, entered in said Surxogate’s Court' on the 2d day of August, 1904, confirming the report of a referee in the proceeding and granting letters of administra- - tian upon the estate of sJohn A. or Anthony Barnes, deceased, to Alary Morris.
    
      John Ewen, for the appellants.
    
      Josiah Canter, for the respondents.
   Hatch, J.:

In April, 1903, John Gh Sanford, one of the appellants herein, ."filed a petition in the Surrogate’s Court, praying that letters of administration be issued .to him on the estate of John A. Barnes. The petition showed that the petitioner was a maternal uncle of the «said Barnes ; that the latter had disappeared from the city of New York about the year 1870 ; that nothing had been heard from him since, except that in the year 1876 or 1877 the father of the said Barnes received two letters, purporting to have been written by JBarnes from some place in the State of Texas stating-that he was then in a hospital suffering from an injury which he had sustained ; that more or less, diligent search had been instituted to ascertain the whereabouts of Barnes, but nothing was discovered concerning his whereabouts or whether he was alive. Barnes left $12,000 in money, deposited' to his credit with the chamberlain of the city of New York. Upon this petition and other proof the surrogate made an order referring the matter to a referee to take proof as to the allegations contained in the petition and report to the court. Thereafter and in November, 1903, a petition was duly presented by Mary Morris, a half sister of the said Barnes, wherein it was alleged that he had mysteriously disappeared about the year 1876 ; that nothing had been heard from him since 1876 or 1877 ; that he left no wife or children and that his only heirs at law and next of kin were the petitioner and Eliza J. Barnes, another half sister. The petitioner applied for leave to intervene in the proceeding before the referee and to be allowed to apply for letters of administration upon the estate of said Barnes, and that the matter be referred to the same referee to ascertain who was entitled to letters of administration, and also to fix the date of the death of the said Barnes. Annexed to this petition was an affidavit of Eliza J. Barnes, sister to the petitioner, stating that the facts set forth in the petition were true and relinquishing her right to be appointed coadministratrix. An order was made by the surrogate granting the prayer of the petition, and the whole matter was referred to the same referee to take proof and report to the court as to who was entitled to letters of administration and to fix the date of the death of the said Barnes. Upon the hearing before the referee it appeared that the said John A. Barnes inherited the sum' of money deposited- with the chamberlain from Gustavns B. Sanford, an uncle of Barnes, who died October 18, 1883. It further appeared that after the death of Sanford diligent search was made to learn the whereabouts of the said Barnes, but without success, and proof was given tending to show that the last time he was heard from was in 1876 or 1877, and the referee fixed the date of the death of the said Barnes at the expiration of seven years .from January 1, 1878, which brought the date of his death on January 1, 1885. He also determined and reported that letters of administration., should be issued to Eliza J. Barnes. Upon motion to confirm the report of the referee the surrogate determined that, as Eliza J. Barnes had waived her right to letters of administration in favor of Mary Morris, the latter* should be appointed administratrix, and the report of the referee, with this exception, was "thereupon confirmed- The decree upon final accounting of the administrator of the estate of Gustavus B. Sanford is not set out in the record, but it appears therein from the' affidavit of Thomas J. Bannon, which accompanied the petition of John G. Sanford for letters of .administration, that upon the 8th day of January, 1887, a decree was entered in the office of the surrogate of the county of New York, which, among other tilings, determined that the said . Anthony or John Barnes inherited from the estate of Gustavus, B. Sanford, deceased, as his nephew, the sum of money which was. deposited with the city chamberlain .of the city of New York to his credit, as directed by. the decree. Upon this appeal it had been urged ■ upon the court that the evidence given before the referee was insufficient from which to find the- death of John A-. Barnes, or, if dead, the proof was insufficient to fix any particular date when he died, and that such matter was mere speculation. 'So far as. concerns the present, order granting letters of administration to Mary. Morris we do not find it necessary to determine or consider this question. It is undisputed that the decree was entered, as stated in the affidavit of Bannon* on the 8th day of January,.1887, and by that decree it was determined that this sum of money deposited with the chamberlain was the money and property of John A. Barnes. This decree has been in nowise disturbed since its-rendition, and it is conclusive of the facts stated therein. (Redf. Surr. [5th ed.] 854 et seq.) For the purposes, of administration,therefore," the fund is to be regarded as belonging to the estate of John A. Barnes. .

The proof adduced was sufficient from which the referee, was authorized to find that Barnes was dead. This being the case, the half sisters became entitled to letters of administration. Such conclusion in nowise determines who is entitled to take as distributees of the fund, nor does the decree of the surrogate assume to determine such question. It, however, confirms the report, which finds as a fact that Barnes died on or., about January 1, -1885. Its operative force, however, is 'limited solely to. the granting of letters. The decree of the surrogate appears to have been made under date of July 27, 1904, and filed in the. office of the clerk, of the surrogate on that day. There is no decree, answering that description in this record. . We assume, therefore* as the parties have raised-no • ques-, tian concerning this discrepancy, that the only matter sought to be reviewed is the decree granting the letters; and as to'that, as we have already observed, it was correct. There was no conclusive renunciation of right to letters made by Mary Morris. She made a statement in the proceedings that she consented to letters of administration being issued to John G. Sanford.- Such consent, however, was not evidenced or filed as required by the provisions of section 2663 of the Code of Civil Procedure, and did not conclude her from subsequently withdrawing such consent if the same were approved by the surrogate. (Matter of Wilson, 92 Hun, 318; Matter of Haug, 29 Misc. Rep. 36.) Doubtless the oral statement, if acted upon by the parties,, would be sufficient as a retraction and become binding, but it was not conclusive, and the surrogate had the authority to permit it to be retracted. (Matter of Baldwin, 27 App. Div. 506.)

The decree of the surrogate in granting the letters was correct; it should, however, be modified by refusing to confirm the report of the referee so far as it finds that Barnes died on or about January 1, 1885, and as thus modified affirmed,' without costs.

Van Bbunt, P. J., O’Bbien, Ingraham and McLaughlin, JJ., concurred. *

Decree modified as stated in opinion, and • as modified affirmed, without costs.  