
    (29 Misc. Rep. 273.)
    In re GIHON’S WILL.
    (Surrogate’s Court, Westchester County.
    October, 1899.)
    1. Executors and Administrators—Appeal — Probate op Will — Superse-
    deas.
    Under Code Civ. Proc. c. 12, tit. 1, § 1310, providing that, where an appeal has been perfected to the general term or to the appellate division of the supreme court, and other acts required to stay execution have been done, the appeal shall stay all proceedings to enforce the judgment or order appealed from, letters testamentary cannot issue to the executors of a will while an appeal from the decree admitting the will to probate is pending in the court of appeals, when the contestant has given an undertaking under Id. tit. 2, § 1326, providing that upon the giving of an undertaking the appeal is perfected.
    2. Same—Administration Pending Appeal.
    Where a decree admitting a will to probate has been appealed from, and taken to the court of appeals, and a supersedeas bond has been given, the executors desiring an administration of the estate pending the appeal must apply therefor under Code, § 2582, providing for appointment of a special administrator when the interest of the estate requires administration pending an appeal from the probate of a will.
    Application by the executors of the last will and testament of Caroline B. G-ihon, deceased, for the issuance of letters testamentary pending an appeal from the probate of said will. Application denied.
    C. N. Bovee, Jr., for executors.
    F. H. Man, for contestant.
   SILKMAU, S.

The appellate division has affirmed the decree of this court admitting the will of Caroline B. Gihon to probate. An appeal to the court of appeals has been taken from the judgment entered upon the order of affirmance, and the contestant has- given an undertaking under sections 1326 and 1327 of the Code of Civil Procedure. The executors demand that letters testamentary be issued to the executors named in the will who may appear and qualify, while, on the other hand, the contestant claims that her appeal to the court of appeals and the filing of the bond under the sections specified stay all proceedings under the judgment. The practice, as laid down by the Code of Civil Procedure, respecting appeals, seems to be fairly clear, and not difficult of application here. Appeals from the surrogate’s court are regulated by article 4, tit. 2, c. 18, Code Civ. Proc. This includes sections 2568 to 2589. These provisions, however, do not apply to an appeal from the appellate division to the court of appeals. In re Ross, 87 N. Y. 514; Hewlett v. Elmer, 103 N. Y. 164, 8 N. E. 387. For the practice of appeals to the court of appeals we must look to title 2 of chapter 12 of the Code of Civil Procedure, which embraces sections 1324 to 1339. This title applies irrespective of the court in which the action originated. Section 1326 requires, to render a notice of appeal effectual to the court of appeals, that an undertaking in the sum of $500 shall be given, and that upon the giving of such undertaking the appeal is perfected. Section 1327 provides that, if the judgment or order directs the payment of money, execution is not stayed unless an undertaking is given to pay the amounts directed to be paid in case of affirmance. There is no special provision in regard to decrees admitting wills to probate. The appellant has given the undertaking required by the section just cited. The questiÓn whether these undertakings operate as a stay of proceedings under the decree of the surrogate is to be determined by title 1 of chapter 12, relating to appeals generally. Section 1310 of that article provides that:

“Where an appeal to the general term of any court, or to the appellate division of the supreme court, or to the court of appeals or otherwise, has been heretofore or shall hereafter be perfected, as prescribed in this chapter, and the other acts, if any, required to be done, to stay the execution of the judgment or order appealed from, have been done, the appeal stays all proceedings to enforce the judgment or order appealed from.”

How, the appellant has perfected the appeal to the court of appeals, and given the security for the money directed to be paid by the decree of affirmance, and these are the only .acts which the appellant is required to do by chapter 12, referred to in this section. It would seem, therefore, that all proceedings to enforce the surrogate’s decree are stayed, unless it can be urged that the issuance of letters is not a part of the enforcement of the surrogate’s decree admitting the will to probate. I am of opinion, however, that such an argument is without force. The authority to issue letters depends wholly upon the admission of the will to probate, and therefore the probate decree is the foundation of the right to issue letters, and, if that falls, the power to issue falls as well. Under the authority of the case in court of appeals reported as Anonymous, 3 Code R. 69, and which construes section 342 of the old Code, now incorporated in section 1310 of the new Code, it would seem that all proceedings in the surrogate’s court, including accountings which necessarily rest upon the probate decree, are stayed by the perfecting of an appeal from the probate decree. I have examined the cases of Taft v. Marsily, 49 Hun, 163, 1 N. Y. Supp. 621; Genet v. Canal Co., 113 N. Y. 472, 21 N. E. 390; Eno v. Railroad Co., 15 App. Div. 336, 44 N. Y. Supp. 61,—cited by the counsel for the executors, but I do not find them in point. The first case was where the appellate court granted a new trial, and the latter two were cases where the courts granted an injunction, and where the parties against whom an injunction was granted were in contempt if they did or performed the acts judicially restrained. It was held that section 1310 of the Code did not cover such cases without an order granting a stay against the operation of the judgment. That section does not permit the continuance of illegal acts which have been judicially restrained, unless the court suspends the operation of its judgment or order. My conclusion is that letters testamentary cannot be granted to the proponents, and their only remedy is an application for letters with the limited authority provided for in section 2582 of the Code.

Decreed accordingly.  