
    Matter of the Judicial Settlement of the Account of Henry Hill, as Temporary Administrator of the Goods, Chattels and Credits of William N. Hill, Deceased.
    
      (Surrogate’s Court, Saratoga County,
    
    
      May, 1904.)
    Appointment of Temporary Administrator—Construction of Code C. P., § 2670, sued. l.
    The authority given by Code Civ. Pro., § 2670, subd. 1, to a surrogate to issue, in his discretion, letters of temporary administration where for any cause delay necessarily occur? in the granting' of letters of administration or in probating a will, can be exercised by him only where some proceeding for probate of the will of the decedent or for issue of letters of administration in chief upon his estate is pending in his county.
    ' On the 8th day of January, 1902, Henry Hill presented to the Surrogate’s Court of Saratoga county his petition praying for his appointment as temporary administrator of the goods, etc., of William N. Hill, deceased. On the 27th day of December, 1901, a petition had been presented to the Surrogate’s Court of Nassau county, alleging, among other things, that William N. Hill died on the 19th' day of November, 1901, being a resident of Nassau county, and leaving .a paper purporting to be a last will and testament, and asking that the same be admitted to probate as and for the last will and tesament of the said deceased.
    At the time the petition was presented to the Surrogate’s Court of Saratoga county, praying for the appointment of' a temporary administrator, there were no proceedings pending in the latter county for the issuing of letters of administration in chief nor for the probate of any alleged will of the said deceased.
    The surrogate of Saratoga county made a decree on the 8th day of January, 1902, awarding temporary letters of administration to the said Henry Hill upon his filing a bond as required by said decree, which bond was afterward presented to, approved and filed in the office of the surrogate of Saratoga county and letters of temporary administration were issued to the said Henry Hill on the 8th day of January, 1902. Thereafter the said Henry Hill proceeded to perform the duties which pertained to a temporary administrator of the estate of said deceased and, on the 30th day of October, 1903, filed an account of his proceedings and a petition for the judicial settlement of the same, in the office of the surrogate of Saratoga county, to which account objections were' interposed by Wilhelmina S'. Palmertier, to whom letters testamentary had been issued by the surrogate of ¡Nassau county, as the sole executrix of the last will and testament of the said deceased, and upon the hearing the executrix moved to have the temporary letters of administration granted to the petitioner, Henry Hill, revoked and to dismiss the proceedings for the judicial settlement of his ac-' count.
    Rockwood & Salisbury, for accountant; Scudder &. Kellogg, for executrix.
   Lester, S.

Section 2670 of the Code of Civil Procedure authorizes the surrogate, in his discretion, on the application of a creditor or a person interested in the estate, to issue to one or more persons competent and qualified to serve as executors; letters of temporary administration when, for any cause, delay necessarily occurs in the granting of letters of administration or in probating a will.

The counsel for the executrix insists that the section referred to contemplates the pendency of some proceeding for the probate of a will or the issuing of letters of administration in chief as a necessary foundation for the exercise by the surrogate of the power conferred upon him to issue letters of temporary administration.

Surrogate Rollins so held in Tooker v. Bell, 1 Dem. 52, and Surrogate Bergen of Kings county held the same doctrine in Sawmill Company v. Dock, 3 id. 55.

So far as I am able to discover, the doctrine of these cases has never been disturbed, nor has any change in the statute authorized a different construction.

It is my opinion that, in the present case, the Surrogate’s Court of Saratoga county was without jurisdiction to appoint a temporary administrator of the decedent, and that the attempt to do so was unauthorized and the letters of temporary administration were void.

It follows, as a natural consequence, that the present proceeding cannot be maintained. The surrogate has no jurisdiction to decide any question that may be involved in it, and is powerless to take any action, except to dismiss the proceeding.

An order should be entered dismissing the proceeding, but, under the doctrine of Bunnell v. Ranney, 2 Dem. 327, without costs.

Decreed accordingly.  