
    In the Matter of the Estate of Henry Hitchler, Deceased.
    (Surrogate’s Court, Erie County,
    October, 1897.)
    1. Surrogate’s Court — Allowance to contesting widow — Citation.
    Where a widow, contesting her husband’s will, applies for an allowance pending the contest for her support, the only person entitled to- ■ notice under section 2722 of the Code of Civil Procedure, the statutory provision applicable to such a case, is the temporary administrator, and its appearance in the proceeding, without objection made by it, is a waiver of all defects in the citation.
    2. Same — Amount.
    Where the widow is given a life estate in personal property and in a house, the allowance should be limited to the amount which the principal of the fund has earned up to the time of her application.
    Proceedings by widow for an. allowance for her support and maintenance pending the contest of her husband’s will.
    Adalbert Moot, for petitioner.
    James G. Smith (George Wadsworth, of counsel), for executors.
   Marcus, S.

Henry Hitchler died in April, 1897, leaving a last will and testament, which has been duly presented for probate, and which is contested by the widow and one of the daughters of the deceased. The contest is still pending and undetermined. In July, 1897, the Fidelity Trust & Guaranty Company of Buffalo was appointed temporary administrator of the estate of said decedent.'

. The widow of decedent now petitions for an allowance of $100 a month out of the estate, for her support and maintenance, on the ground that she is in need of money for her support and has no property except her interest in the estate.

Under the will of Henry Hitchler, the petitioner was left a life estate in about $13,000 of personal property, and also the use for life of a house and lot,.to cost not over $2,200 free of all expenses.

■This case seems to be a proper one for the exercise of the discretion reposed in the surrogate, and was so. intimated by me on the hearing. H any relief is to be afforded it must be granted under. the authority of section 2723 of the- Code, which contemplates the issuing of a citation, and upon the return of the same a decree may be made. It is urged that the relief applied for cannot be granted upon a mere motion; that there must be a decree upon a citation; not an order on motion; and further, that this section does not apply to temporary administrators.

Section 2722 of the Code directs that the executor or administrator be cited to show cause why such a decree should not be made.

' While it is true that no citation was issued in this, proceeding and that the parties are in court' on motion papers, yet, the Fidelity Trust & Guaranty Company, the temporary' administrator, appeared on this proceeding without objection and must be deemed,' therefore, to-have waived any irregularity upon the question of a citation.

The proponents of the will were not entitled to a citation and cannot now be heard on the irregularity of the proceeding, to which those entitled make no objection. The temporary administrator alone was entitled to a citation. Rank v. Camp, 3 Dem. 278.

The section must be held to include temporary administrators since letters testamentary, or letters of administration, include temporary letters. Matter of McGowan, 124 N. Y. 527.

It is not entirely clear from the reported cases that the surrogate, under the conditions presented by this case,- can make a -decree directing payment for support during the progress of a contest, yet, I am inclined to grant the relief, but the amount of $100 per month cannot be granted, since that would be arbitrarily fixing an amount. The rule seems to be that where a provision in a will is the income of a trust fund, the limit is the amount earned by such fund at the time of the application for relief.

An amount can be allowed on the filing of a bond to be paid to the petitioner, to be reckoned as a part of petitioner’s share, as next of kin, in case her contest should prove successful, and in case it should fail, as a part of her interest under the will.

The life interest of the petitioner may terminate at any time, and it would, therefore, seem safe to pay her such an amount as the sum of $15,200 would have earned tip to the time of this application.

Decreed accordingly.  