
    Matter of the Estate of Ellen L. Dunn, Deceased.
    (Surrogate’s Court, New York County,
    April,1909.)
    Executors and administrators — Appointment and qualifications of personal representative, resignations and removals — Removal or substitution and revocation or modification of letters — In general — When Surrogate’s Court will not exercise jurisdiction. Surrogates’ Courts — Nature and extent of jurisdiction — In general — Incidental jurisdiction — When court will refuse to exercise jurisdiction during pendency of action in Supreme Court.
    Where a doubtful question as to the construction of a will is involved in an action pending in the Supreme Court for the partition of real property, the Surrogate’s Court will not pass upon the question on a summary application to revoke letters of administration cum iesiamenio cmnecco, though the question is also involved in the latter proceeding, but will dismiss the application without prejudice to a renewal thereof after the termination of the action.
    Application to revoke letters of administration.
    Alfred B. Jaworower, for petitioner.
    John T. Fenlon, for administratrix cum testamento annexo.
   Thomas, S.

Among the supplementary papers submitted by the parties, which reached me after the filing of my previous memorandum of decision, I find a copy of the will of the decedent. An examination of that will satisfies me that it is not at all clear that the real property in question w¡as devised to the two children of the decedent as tenants in common, as alleged in the petition in this proceeding, and that it may be that a proper construction of the paper requires the conclusion that the devise was to- the executors for purposes of sale, coupled with a mandatory power to sell and divide the proceeds, thus leaving the legal title in the executors, boiind by trusts, in all respects as if it had forthwith been converted into personalty. This question is before the Supreme Court for decision in the pending action for partition, and I should not upon this summary application to revoke the letters cum testamento annexo of the administratrix with the will annexed embarrass that tribunal by attempting to pass upon it. The proceeding will therefore be dismissed, without prejudice to renewal thereof after the termination of that action.

Proceeding dismissed.  