
    In the Matter of the Application for the Revocation of Letters Testamentary Heretofore Issued to Emma Richardson and William T. Washburn, as Executors, etc., of Benjamin Richardson, Deceased, and Their Removal as Trustees Thereunder. William T. Washburn, Individually and as Executor, etc., Appellant; Viola J. M. Karam, Respondent.
    First Department,
    June 28, 1907.
    Appeal — case remitted to surrogate for resettlement.
    When the surrogate on an application to revoke letters testamentary has ordered that affidavits of the petitioner used in a prior proceeding be stricken from the record unless the former answering affidavits were also incorporated, and there- ■ is a failure to incorporate all of the answering affidavits because they have been lost, the Appellate Division will remit the ease to the surrogate for resettlement, •
    
      Appeal by William T. Washburn, individually and as sole surviving executor and trustee, etc., of Benjamin Richardson, deceased, from an order of the Surrogate’s Court of the county .of New York, entered in said • Surrogate’s Court on the 10th day of May, 1907,- denying a motion to resettle an order entered in said court on the 9th day of July, 1906, denying the motion of Viola J. M. Karam for revocation of letters testamentary, as resettled by an order of March 11, 1907.
    
      Robert C. McCormick, for the appellant.
    
      George H. Mallory, for the respondent.
   Houghton, J.:

Proceedings were begun in the Surrogate’s Court in 1904 by Viola J. M. Karam to revoke letters testamentary theretofore issued to Emma Richardson and William T. Washburn, as executors of the last will and testament of Benjamin Richardson, deceased, and for their removal as trustees under the will of said deceased, which resulted in an order, dated the 9th day of July, 1906, denying such relief.

A large number of affidavits were submitted to the surrogate by • each party. A similar proceeding had been instituted in 1894 and had been discontinued by mutual stipulations. The petitioner submitted on. the last ■ application numerous affidavits which she had used on the former proceeding, without serving copies and without giving notice of intention to use them, and objection was made on that ground. The executors had on the first application submitted a large number of answering affidavits.

Although the surrogate rendered this decision on thé present application in .May, 1905, the order was not settled until July of the following year, and' a’s finally entered it recited the affidavits used in the proceeding of 1894, accusing the executors of misconduct, but none of the affidavits then' used to explain their conduct. An appeal having been taken to this court from the order of July 9, 1906, by the petitioner, the executors' moved to resettle the order appealed from by striking out the recitals respecting the hostile affidavits unless the"-exculpating affidavits in behalf of the executors were also recited and printed in the appeal book. On that motion the learned surrogate -wrote a memorandum decision,in. which he- said: “ I clearly remember that my attention was .called to -the fact that the averments .contained in these affidavits relating t'o the misconduct charged against the executors had been denied or explained in other affidavits also submitted to Surrogate. Arnold on that application and in the records of the testimony taken before the' referee prior to the .time of the application. I am, 'therefore, of the.opinion that' the' affidavits used in hostility to the executors should not have been recited in the present order without also reciting the affidavits used in the former application1 in denial. Unless-the attorney representing the appellant in that order will, within1 three days from the publication of this memorandum, consent in writing to. a recital in the order of the affidavits used in the 1894 proceeding to remove the executors in contradiction to the affidavits already recited, the order will be resettled by striking 'therefrom all the /affidavits used upon that application submitted- by him.”' (N. Y. L. J. Jan. 2, 1907.) .

. The attorney for the appellant endeavored to- comply with this' requirement, and stipulated to. insert ten affidavits so used.- It is alleged that -these affidavits were the least important, and that there were numerous ethers Containing much- more satisfactory explanation used on the former proceeding, which, however,, coii-ld not he found.-

. On March 11,. 1907, an order was entered resettling the former order,, reciting these -ten affidavits only, from which -the executors-have appealed-, as well- as from the order denying a subsequent motion to resettle,,-entered May .10, 1907. '

The result of the various motions.is that all of the incriminating affidavits used against the executors in the proceedings of 1894 were r.ecited in-the order, and, hence, form a part of the record, and none of the explanatory affidavits,, except the unimportant ten which the attorney for the petitioner stipulated might he inserted. . , '

• It would seem that 'there has been some oversight -in resettling the ordér, and that it has not been resettled in' conformity with the memorandum, of the surrogate' above quoted. Of course, this court will not - interfere w-ith the settlement of an. order-appealed from .unless it clearly .appears that some paper actually uséd has been emitted' -from the rental* -or t4»t some paper B<>t 'n$<j Iw? been included in the recitals. Whether it was necessary- to again serve the affidavits used on the former proceeding to entitle them to be used on the-present proceeding or not, or give notice of intention so to use them, if, as the surrogate in his memorandum says was the fact, the explanatory affidavits were also submitted on the last proceedings then the latter should be recited in the order in full or the former should be expunged.' Such was the ruling of the surrogate, which, by oversight, does not seem to have been carried into effect.

The situation, in view of the inability to find the papers, is exceedingly complicated, and we think the order should be reversed and remitted to the surrogate for resettlement in conformity with the facts, with ten dollars costs and disbursements of the appeal to appellant payable out of the estate.

Ingraham, McLaughlin, Clarke and Lambert, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to ' appellant payable out of the estate, and-matter-remitted to the surrogate.  