
    In re HILL’S ESTATE.
    (No. 6893.)
    (Supreme Court, Appellate Division, First Department.
    February 19, 1915.)
    1. Executors and Administrators (§ 35) — Removal of Administrator— Grounds.
    Under Code Civ. Proc. § 2569, authorizing the removal of an administrator who had willfully refused, or without good cause, neglected to obey any lawful direction of the surrogate, an administrator of a decedent, having no property in the state but a cause of action pending in the Supreme Court, cannot be removed for a refusal to verify papers necessary to his substitution as party plaintiff in place of decedent to-prosecute an appeal, where all the next of kin were satisfied with the decision, and did not desire further litigation.
    [Ed. Note. — For othen cases, see Executors and Administrators, Gent. Dig. §§ 227-262; Dec. Dig. § 35.]
    2. Exectjtobs and Administeatobs (§ 35*) — Removal—Pboceedings. _
    _ It is irregular to ingraft on a proceeding to appoint an administrator an entirely separate proceeding to remove an administrator appointed.
    [Ed. Note. — For other cases, see Executors and Administrators, Gent. Dig. §§ 227-262; Dec. Dig. § 35.*]
    Appeal from Surrogate’s Court, New York County.
    In the matter of the application for letters testamentary of -Marie Hill, deceased. From an order of the surrogate, removing Mrs. Marie J. M. Lawrence, administratrix, she appeals.
    Reversed.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
    Rounds, Schurman & Dwight, of New York City (Carl A. Hansmann, of New York City, of counsel), for appellant.
    Moses, Morris & Henderson, of New York City (Isham Henderson, of New York City, of counsel), for respondent Healy, as temporary administrator.
    
      
      For other cases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Eep’r Indexes
    
    
      
      For other cases see same topic & § numbejr in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   CLARKE, J.

In 1913 Mrs. Marie Hill, a childless widow residing in Dresden, Germany, commenced an action against the Guaranty Trust Company and J. Lynch Pendei'gast, as trustees under the last will and testament of Josephine Stephani, deceased. Alphonse' J. Stephani, and the Equitable Trust Company of New York, as committee of the estate of Alphonse J. Stephani, to construe the will of Josephine Stephani, and to have declared unlawful a certain accumulation of income thereunder in the hands of said trustees, arising under the trust created by said will, of which trust Alphonse J. Stephani was the beneficiary for life, with remainder “to my said sister Marie Hill absolutely and forever or in case she then be dead to her children share and share alike,” upon the theory that said accumulation was unlawful, and was, under the statute, the property of Marie Hill as the person presumptively entitled to the next eventual estate. That action was tried at Special Term, and resulted in a judgment in favor of the plaintiff. An appeal was taken by the Equitable Trust Company, as committee of the estate of Alphonse J. Stephani, a life convict, and as his guardian ad litem. This court unanimously reversed the judgment, and directed the complaint to be dismissed. Hill v. Guaranty Trust Co., 163 App. Div. 374, 148 N. Y. Supp. 601. Judgment of reversal was entered August 14, 1914.

Mrs. Hill died in Dresden on August 23, 1914. Without knowledge of her death, her attorneys filed notice of appeal to the Court of Appeals on September 1, 1914. On October 14, 1914, Mrs. Hill’s former attorneys in said action, alleging that they were persons interested in her estate and were creditors thereof by reason of certain disbursements made by them as her attorneys in said action, filed a petition in the Surrogate’s Court for the appointment of a temporary administrator of her goods, chattels, and credits, and for the issuance of citation to the next of kin, including the Equitable Trust Company, as committee of the estate of Alphonse J. Stephani. The petition set forth that the only property of any kind left by deceased within the state of New York was the said cause of action pending in the Supreme Court. On November 19, 1914, an order was made granting temporary administration to Mrs. Marie J. M. Lawrence, a niece of Mrs. Hill. Mrs. Lawrence, her sister, Mrs. Sophie E. M. Leith, and the life convict, Alphonse J. Stephani, are the sole next of kin of Mrs. Hill. The order of the surrogate provided that the letters of temporary administration should be limited to the prosecution of said cause of action. Mrs. Lawrence subsequently declined to verify papers presented by the former attorneys of Mrs. Hill, necessary to procure her substitution as party plaintiff in said suit in the Supreme Court, and declined, after consultation with her sister, to authorize the taking of an appeal to the Court of Appeals therein, because—

“she considers the claim that was set up in behalf of Marie Hill in said suit, to the accumulated income of the trust created for the benefit of Alphonse J. Stephani, as most unjust and contrary to the wishes and intentions of the testatrix, Josephine Stephani, and that deponent’s sister, Mrs. Sophie E. M. Leith, agrees with her; that they both feel that the institution of said suit was a grave mistake and a wrong against Alphonse J. Stephani, and that they are opposed to the further prosecution thereof; and that they, together with said Alphonse J. Stephani, are the sole next of kin of said Marie Hill, deceased.”

She also says that Mrs. Hill left a last will and testament of which Heinrich Jucho, a notary public of No. 12 Neue Maizers Strasse, Erankfort-a-Main, Germany, is the executor, and that further prosecution of said suit is not necessary for the protection of creditors of the estate of Mrs. Hill, as she left an ample estate in Germany, valued at from $50,000 to $100,000.

The petitioners thereupon, in the same proceedings in the Surrogate’s Court in which Mrs. Lawrence had been appointed temporary administratrix, made a motion, by an order to show cause why she should not be removed. Said motion was granted, she was removed, and Thomas M. Healy was appointed as such temporary administrator; his powers being also limited to the prosecution of the appeal from the judgment referred to. From this order the Equitable Trust Company, as committee of the estate of Alphonse J. Stephani, appeals.

Section 2569 of the Code of Civil Procedure provides grounds upon which an administrator may be removed. The only ground therein provided which by any possibility would apply is subdivision 3:

“Where he has willfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate contained in a decree or order, or any provision of law relating to the discharge of his duty.”

Mrs. Lawrence did not disobey any direction of the surrogate contained in the decree or order, because none such was made; nor has it been found as a fact that she has willfully or without good cause refused or neglected to be substituted as plaintiff in the action in the Supreme Court and to take an appeal to the Court of Appeals, if it is to be inferred that she was appointed administratrix for that purpose. On the contrary, she has shown that Mrs. Hill died testate, leaving a considerable estate and a duly appointed executor, and that all of the next of kin are satisfied with the decision of the Appellate Division, and do not desire an appeal to the Court of Appeals. I do not understand that it is the duty of an administrator to exhaust all possible remedies and to take all possible appeals, nor do I understand that counsel may be forced upon an administrator, but that he has some discretion in the exercise of his duties.

We think it was irregular to ingraft upon a proceeding to appoint an administrator an entirely separate proceeding to remove her, and that the order appealed from should be reversed, with $10 costs to the appellant. All concur.  