
    In the estate of Ann Voorhis, deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed June 15, 1886.)
    
    1. Executors and administrators—Temporary administrator—Ac-
    count OF WHEN TO BE JUDICIALLY SETTLED AND DETERMINED—PARTIES TO THE ACCOUNTING.
    Pending a controversy over the prohate of a decedent’s will, her estate was in charge of a temporary administrator. The controversy having resulted in the admission of the will to prohate.
    
      Held, that t¡ e account submitted by the temporary administrator should not b > judicially settled and determined until letters testamentary had been issued to the executors, and they had been brought in as parties to the accounting.
    2. Same—Pendency of proceedings for revocation of probate of will
    NO BAR TO ISSUANCE OF LETTERS TESTAMENTARY—^RESTRICTED AUTHORITY OF EXECUTORS WHILE SUCH PROCEEDINGS ABE PENDING-CODE OF ClVTL
    Procedure, §§ 2636, 2650, 2582.
    The pendency of a proceeding for revocation of probate is no bar to the issuance of letters testamentary, but executors to whom letters are granted while such a proceeding is pending have only such restricted authority as is allowed by section 2582 of the Code of Civil Procedure.
   Rollins, S.

The paper propounded as the will of this decedent was, after a contest, admitted to probate by the •surrogate on November 9, 1885. Ho testamentary letters ■-have yet been issued to any of the persons whom it names as executors. One of those persons, Gilbert Oakly, Esq., has been acting ever since April 8, 1882, as temporary administrator of the estate. He has recently filed his account, together with a petition for its judicial settlement, and has caused all persons who claim to be interested as creditors, legatees, heirs at law or next of kin, to show cause why he should mot be discharged and why his letters should not be revoked.

It is insisted by counsel for the residuary legatees that the petitioner’s accounts ought not to be settled and determined until letters testamentary shall have been issued to such of •the executors as may see fit to qualify.

On behalf of one of decendent’s next of kin it is contended that the surrogate has been deprived for the present of all authority to issue letters testamentary by the institution of certain proceeding now pendings before him for revoking •the probate of decedent’s will.

The latter contention is, in my judgment unsound.

Section 2636 of the Code provides that immediately . after a will has been admitted to probate, the person or persons named therein as executors, who are competent by law to serve, and who appear and qualify, are entitled to letters ■ testamentary thereupon, unless ”—(Here follows a provision •to the effect that if before such letters are granted a creditor ■of the decedent or a person interested in the estate shall interpose “legal objections ” to their issuance, the surrogate must inquire into such objections, and determine whether or not they are well founded).

It is claimed by contestant’s counsel that the provisions of section 2650 substantially forbid the issuance of letters testamentary during the pendency of proceedings for revo■cation of probate.

I find no such inhibition in the letter or the spirit of that section. It seems, on the contrary, to contemplate, as does •also the section preceding, that letters testamentary will in .all cases have been actually issued by the surrogate before proceedings for revocation of probate are set on foot.

The qualified stay of “all proceedings relating to the ■estate,” for which section 2650 provides, is evidently intended to effect this result, and this only; that pending a controversy over revocation of probate, the estate to which such ■controversy relates shall not be managed and dealt with either in accordance with the will or in accordance with the statutes of descent and of distributions, but shall be so handled as to protect the rights of the next of kin and heirs at law of the decedent in the event of the establishment of his intestacy, and to protect the rights of all persons interested under the will, in case probate shall be ultimately upheld.

This view is in harmony with the scheme of the code as regards the effect of an appeal from a decree of the surrogate admitting a will to probate or granting letters testamentary or letters of administration. Section 2582 declares that such an appeal shall not stay the issuing of letters, “where in the opinion of the surrogate, manifested by an order, the preservation of the estate requires that the letters should issue.” The section proceeds to impose certain limitations upon the power of an executor or administrator to whom letters are issued pending such appeal. These provisions are substantially borrowed from the repealed provisons of the laws of 1871, chap. 603, section 1. Prior to the enactment of that statute, an appeal from a decree admitting a will to probate operated, in case letters testamentary had not been theretofore issued, as a stay of the issuance of such letters. The effect of the act of 1871 was to confer upon the surrogate a discretionary authority to issue letters testamentary even after the taking of such an appeal, the holder whereof should be invested with all the powers of the executorial office except as expressly restricted by the terms of that act. The restrictions thus imposed, and now imposed by section 2582, relate to such powers and such only as would be specially called into exercise by the terms of the testator’s will, and are practically the same as the restrictions occasioned by an appHcation to revoke probate • under section 2650.

I see no reason, therefore, why Hmited testamentary letters may not issue at once to such quahfied persons as shall see fit to accept them. And I agree with counsel for the-residuary legatees that it is proper that such letters should issue before any further steps are taken for the settlement of the temporary administrator’s account. While that officer may at the pleasure of the surrogate be compelled to render an account for judicial settlement (§ 2625), he does not seem to have any absolute right to demand such judicial settlement at any special time, or, indeed, to demand it at all, unless he is to be deemed, within the meaning of section 2689, an “administrator and if such is the case, this court may entertain his application for an. accounting with a view to the revocation of his letters, or may decline to entertain it.

Let the pending proceeding be suspended until letters-testamentary shall have been issued to such persons as shall quahfy as executors ; it may then be pushed to a. decree to which those executors may be made parties.  