
    (63 Misc. Rep. 179.)
    In re DUNN’S ESTATE.
    (Surrogate’s Court, New York County.
    April, 1909.)
    Executors and Administrators (§ 477)—Accounting.
    A person, who is administratrix with the will annexed and also a tenant in common of real estate devised by the will, as administratrix has no right to or control over the rents, but as a tenant in common is entitled to collect the rents, and cannot be called to .account therefor before a surrogate.
    [Ed. Note.—For other cases, see Executors and Administrators, Dee. Dig. § 477.]
    Application to revoke letters of administration on the estate of Ellen E. Dunn, deceased.
    Application denied.
    See, also, 105 App. Div. 596, 94 N. Y. Supp. 303; 118 N. Y. Supp. 561.
    Alfred B. Jaworower, for petitioner.
    John T. Eenlon, for administratrix cum testamento annexo.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   THOMAS, S.

According to the undenied averments of the petition, the incompetent, whose committee is the petitioner, and the respondent are owners as tenants in common in equal shares of a parcel of real estate in this city; their titles having "been acquired by devises contained in the will of the decedent. The respondent is also administratrix with the will annexed of the estate of the decedent. The respondent has for years collected the rents of' said real property, and has from time to time accounted to the-petitioner for the share of the incompetent. The present application is to revoke the letters of administration with will annexed on the ground that the respondent has not promptly accounted for all of said rents. Upon the facts stated the relief asked for cannot be granted. The respondent, as an administratrix, has no right to or control over the rents of the devised real property; but by virtue of her legal rights as a tenant in common she was entitled to collect the rents, and she cannot be called to account therefor before, a surrogate. Matter of Spears, 89 Hun, 49, 35 N. Y. Supp. 35.

The application must be denied.

Application denied.  