
    In the Matter of the Estate of Maria Zeigler, Deceased
    Surrogate’s Court, Dutchess County,
    January 9, 1962.
    
      
      Robert A. MacKennan for petitioner. Scott & Hoyt for respondent.
   W. Vincent Grady, S.

A motion has been made for summary judgment pursuant to rule 113 of the Rules of Civil Practice and for such other and further relief as to the court may seem just and proper.

The respondent opposes the petition on the grounds that there are many issues of fact which must be resolved by a trial and not by affidavit.

It appears that Maria Zeigler died testate on January 19, 1933 a resident of Dutchess County, naming James and Archibald MacKennan as executors of her will. This will was offered for probate in this court on May 12,1933, arid objections were filed by Edward Zeigler, a nephew, and the matter referred for trial. On May 17, 1935 Harry Arnold, Esq., a Poughkeepsie attorney, was appointed temporary administrator of the estate and upon his death, a son, Richard Arnold, was appointed temporary administrator in his place. Certain moneys and securities were turned over to Richard after he qualified by filing a bond of the Fidelity & Deposit Company of Maryland in the amount of $7,500.

It is claimed by petitioner that thereafter Richard Arnold wrongfully withdrew from the estate account the sum of $3,180.

On April 12, 1939 Edward Zeigler, the contestant, died and his residuary legatees were cited to show cause why the objections to the will offered for probate should not be discontinued. Then on November 17, 1941 Richard Arnold, the temporary administrator, died intestate. On November 26, 1941 a letter was sent by Archibald MacKennan, the petitioner, to the Fidelity & Deposit Company of Maryland, alleging misappropriation of funds in the estate of Maria Zeigler by the temporary administrator, the late Richard Arnold.

On December 10,1941 Charles Arnold was appointed administrator of the estate of his father Richard Arnold; and subsequently Ruth Arnold Schlude, a daughter of Richard, was appointed administratrix in place of her brother.

On June 10, 1943 a final account in the estate of Richard Arnold was filed and a citation published for some 59 creditors including the estate of Maria Zeigler and the Fidelity & Deposit Company of Maryland. On July 30,1943 that particular account was judicially settled.

In March, 1961 an order was entered in this court dismissing the objections which had been filed to the probate of the last will and testament of Maria Zeigler, and on March 8, 1961 letters testamentary were issued to Archibald MacKennan who qualified as executor of her estate.

On March 13, 1961, Ruth Arnold Schlude Coffey as administratrix of the estate of Richard Arnold, filed a voluntary petition for the final settlement of his accounts as temporary administrator in the estate of Maria Zeigler. There was an examination of Ruth Arnold Schlude Coffey on May 4, 1961 and objections were filed by the respondent to the account which had been filed by her.

From these facts it appears that both petitioner and respondent had knowledge of the alleged misappropriation by the temporary administrator, Richard Arnold, in 1941; yet neither party took any action until 20 years later when this application for summary judgment was presented to this court.

As there are issues of fact concerning this alleged misappropriation which must be resolved by a hearing, the motion for summary judgment should be denied.  