
    In the Matter of the Petition for the Revocation of Letters of Administration, with the Will Annexed, on the Estate of Samuel Wood, Dec'd.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Administrator—Removal on ground of waste—Evidence—Sufficiency.
    An application for the removal of an administratrix, with the will annexed, on the ground of waste, in selling property for less than its value, is properly denied where the evidence as to the value of the property is conflicting.
    
      2. Same—Removal on ground of concealment to avoid service.
    Where the surrogate has had the matter of the will and the appointment of the administratrix frequently before him, and has been fully apprised of her acts, his order refusing to remove her on the ground that she has concealed herself so that process would not be served upon her will not be reversed unless such fact be clearly and sufficiently substantiated.
    Appeal from a decree or final order of the surrogate’s court,, which, after a trial, dismissed, denied, and finally determined a. special proceeding, having for its object the removal of the administratrix c. t. a., and the revocation of her letters testamentary.
    
      Julien T. Davies and Byron Traver, for app’lts; B. E. Valentine, for resp’t.
   Lawrence, J.

This is an appeal from an order or decree of the surrogate of the city and county of Mew York, denying the application of the appellants for a revocation of the letters of administration, with the will annexed, upon the estate of Samuel-Wood, deceased, theretofore issued to the respondent, Jennie-E. Wood. The application is made under § 2685 of the Code of Civil Procedure, and is based upon four grounds: (1) That she-has wasted the estate to which the appellants would be ultimately entitled; (2) that she is completely under the influence of an attorney for persons asserting large claims against the estate, and who was using the administratrix for his own ends and purposes; (3) that she had kept herself concealed, under the advice of such attorney, so that process could not be served upon her; and (4) her connivance at the commission of a fraud on the part of said attorney in securing an opinion on a question of law from this-court upon an agreed case.

The testator, Samuel Wood, died in 1878, leaving a will and. codicil, which were duly admitted to probate by the surrogate of the county of Mew York. He devised his residuary estate to his executors, in trust to invest and provide for the payment of' certain life annuities and legacies; and, second, to create and maintain a benevolent hospital. By the codicil it was provided that, instead of a hospital, the devise and bequest of the residuary estate should be applied to the founding of a musical institution to be known as and called “The Samuel Wood Musical College,.” or “The Samuel Wood College of Music of the city of Mew York.” The gift in trust for charitable uses was finally declared to be incapable of enforcement, and void, and, therefore, so much of the residuary estate as was directed to be applied to such uses-passed to Abraham Hewlett, the nephew of the testator, and his sole heir and next of kin. Two of the executors are dead, one was removed, and the letters to the fourth were revoked as having been improperly granted. In January, 1891, the office of executor under the will and codicil being vacant, .letters of administration cum testamento annexo were issued to the respondent, Jennie E. Wood.

The allegation of waste is based upon the fact that the administratrix sold a piece of land containing one and three quarter acres to one Mesbitt for §500, which it is claimed was far below the value of the property, and that, in consequence of its peculiar situation with reference to other portions of the property, it was largely increased in value. We deem it sufficient to say in regard to this allegation that, on the proceeding before the surrogate, affidavits were produced tending to show that the sum for which the property was sold by her was its fair and reasonable value. It is true that the affidavits produced; on the part of the appellants place the value of the property at a much greater sum, but in view of this conflict of evidence we do not think the appellants have made out such a case of improvidence against the administratrix as would justify her removal.

Neither do we consider that the appellants have made out that the administratrix is so thoroughly under the control of her attorney that she ought to be removed. The submission of the case of Wood v. Nesbit, 42 St. Rep., 778, to the general term was undoubtedly done under the advice of the attorney ; but we cannot say that that act was so improper on the part of the respondent as to lead us to deprive her of her office. The general term in that case decided that the attorney was in fact the counsel for both parties, and that the controversy was not of that character which the Code contemplates, and, therefore, it recalled the decision which it had rendered upon the submitted case. 47 St.Rep.34. The conduct of the attorney may have been improper, but it is not established that respondent knew, or had reason to believe, that there was any impropriety in the action which the attorney had taken.

As to the point that the letters issued to the respondent were improperly issued, we think that the appellants are not entitled to question the validity of those letters, in view of the decision of the surrogate, made upon the application of Joseph S. Wood, 17 N. Y. Sup., 354, who claimed a prior right to the administratrix to such letters.

In respect to the allegation that the administratrix has concealed herself so that process could not be served upon her, we do not find that fact sufficiently substantiated to warrant us in reversing the decision of the surrogate. The surrogate has had the matter of this will and the appointment of the respondent frequently before him, and has been fully apprised of her acts. After a full hearing of the allegations of the petitioners and the respondent, and argument thereon, he has declined to grant the prayer of the petitioners, and, although we have the right to examine this matter as res nova, we think that upon the whole case the decision of the surrogate should be confirmed.

Various technical exceptions to the procedure of the petitioners and the regularity of their practice are discussed in the brief submitted on the part of the respondent, which it is unnecessary, in the view we have taken of this case, for us to consider. We are, therefore, of opinion that the decree or order of the surrogate should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.  