
    Allegations that a debtor transferred his property in fraud of his creditors with the advice and aid of defendants, in furtherance of a conspiracy between him and defendants’ agent, and in the presence and with the assistance of the agent, showed a joint and several liability by defendants and the agent.
    
      In re OWSLEY.
    (Supreme Court, Appellate Division, First Department.
    November 8, 1912.)
    1. Executors and Administrators (§ 32*)—Revocation of Letters—Application and Proceedings Thereon.
    On an application for the revocation of letters testamentary, required by Code Civ. Proc. § 2686, to be made by petition, supported by proof, by affidavit or oral testimony, of the truth of the allegations contained in the petition, an affidavit in support of such a petition, made wholly on information and belief, has no probative value.
    [Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 191-212; Dec. Dig. § 32.*]
    2. Executors and Administrators (§ 32*)—Revocation of Letters—Application and Proceedings Thereon.
    Under Code Civ. Proc. § 2686, requiring applications for the revocation of letters testamentary to be made by petition, supported by proof, by affidavit or oral testimony, of the truth of the allegations of the petition, affidavits made by persons now deceased on a former application for the same purpose did not constitute sufficient proof of the allegations of the petition.
    [Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 191-212; Dec. Dig. § 32.*]
    3. Affidavits (§ 17*)—Form and Contents—Reaffirming Allegations of Other Affidavits.
    A reference in an affidavit to a petition and affidavits on file in the same court, which were asked to be read in connection with and as a part of such affidavit, did not amount to a reaffirmation of the allegations of such petition and prior affidavits as of the knowledge of the person making the subsequent affidavit.
    
      *For other cases see same topic & § number in Dec. & Am, Digs. 1907 to date, & Rep’r Indexes
    
      [Ed. Note.—For other cases, see Affidavits, Cent. Dig. §§ 8-10, 16; Dec. Dig. § 17. *1
    4. Affidavits (§ 18*)—Use in Proceedings Subsequent to One in Which Made.
    The test of whether an affidavit used in one proceeding can be used in a second proceeding is whether or not the affiant can be prosecuted for perjury, if the allegations prove to be false; and hence, where the affiants have died in the meantime, the affidavits cannot be so used.
    [Ed. Note.—For other cases, see Affidavits, Cent. Dig. §§ 69-78; Dec. Dig. § 18.*] .
    5. Executors and Administrators (§ 32*)—Revocation of Letters—Application and Proceedings Thereon.
    Under Code Civ. Proc. § 2686, requiring applications for the revocation of letters testamentary to be made by petition, supported by proof, by affidavit or oral testimony, of the truth of the allegations of the petition, the proof in support of such a petition must he competent legal proof, of the same quality which would be required on a hearing of the issues raised by the petition.
    [Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 191-212; Dec. Dig. § 32.*]
    6. Executors and Administrators (§ 32*)—Revocation of Letters—Application and Proceedings Thereon.
    Under Code Civ. Proc. § 2686, requiring applications for the revocation of letters testamentary to be made by petition, and providing that, upon proof by affidavit or oral testimony of the truth of the allegations of the petition, a citation may be issued to the executor, the surrogate is without jurisdiction to issue a citation, where the petition is not supported by sufficient legal proof.
    [Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 191-212; Dec. Dig. § 32.*]
    •For other cases see same topic & § otmber in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Appeal from Order of Surrogate, New York County.
    Application by Charles Sims and others, executors of Mary Adelaide Yerkes, deceased, for the revocation of ancillary letters testamentary issued to Louis S. Owsley, as ancillary executor of the last will and testament of Charles T. Yerkes, deceased. From an order denying a motion to vacate a citation, the ancillary executor appeals. Reversed, and motion granted.
    Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and HOWLING, JJ.
    Arthur H. Van Brunt, of New York City, for appellant.
    Carroll G. Walter, of New York City, for respondents.
   SCOTT, J.

This is an appeal from an order of the surrogate denying a motion by Louis Owsley, ancillary executor of Charles T. Yerkes, deceased, to vacate a citation theretofore issued to said Owsley to show cause why his letters should not be revoked, and also an injunction issued in connection therewith. The ground of the motion is that the surrogate was without jurisdiction by reason of deficiencies in the papers upon which the citation and injunction were issued. The statute (section 2686, Code Civ. Proc.) reads as follows:

“A petition, presented as prescribed in the last section, must set forth the facts and circumstances, showing that the case is one of those therein specified. Upon proof, by affidavit or oral testimony, satisfactory to the Surrogate, of the truth of the allegations contained in the petition, a citation must be issued according to the prayer thereof; except that, where the case is within subdivision fifth of the last section, and the executor has given a bond, as prescribed in article first of this title, the surrogate may, in his discretion, entertain or decline to entertain the application.”

It will be seen that, to justify the issuance of a citation, two things are necessary: (1) A petition containing a statement of facts and circumstances justifying the issue of the citation. (2) Proof, by affidiavit or oral testimony aliunde the petition, of the truth of the allegations contained in said petition. Moorehouse v. Hutchinson, 2 Dem. Sur. 429.

The papers submitted to the surrogate in support of the petition consist of an affidavit by Carroll G. Walter, Esq., one of the attorneys for the respondents, and affidavits on file in the surrogate’s office, made in another proceeding by persons who are now dead. Mr. Walter’s affidavit is wholly on information and belief, andl therefore has no probative value.

The other affidavits were made under the following circumstances: The present respondents are the executors of Mrs. Mary Adelaide Yerkes, now deceased. In November, 1910, Mrs. Yerkes filed a petition for the revocation of Owsley’s letters upon charges of misconduct identical with those set forth in the present petition. Her petition in that proceeding was supported by affidavits of herself and James Russell Soley, Esq., then her attorney. A citation was issued in the proceeding instituted by her, an answer interposed, and the matter sent to a referee. Pending the reference, both Mrs. Yerkes and Mr. Soley died, and the proceeding lapsed. In instituting another proceeding, for the same relief, the petitioners rely, as “proof of the truth of the allegations” contained in their petition, upon the affidavits of Mrs. Yerkes and Mr. Soley used in the former proceeding. The question is whether or not they constitute “proof” within the meaning of the statute.

Mr. Walter includes in his affidavit this clause:

“Reference is here made to said petition [meaning that of Mrs. Yerkes] and affidavits now on file in this court, and the same are asked to be read in connection with and as part of this affidavit.”

The surrogate treated this clause as equivalent to a reaffirmation by Mr. Walter of the allegations contained in the affidavits referred to. This, we think, was an erroneous construction to give to the clause quoted, and, indeed, Mr. Walter in his brief expressly disclaims any intention to reaffirm as of his own knowledge the allegations contained in the affidavits of Mrs. Yerkes and Mr. Soley. It is clear that the only purpose and effect of referring to the former petition and affidavits was to incorporate them among, the papers upon which the application for a citation was made. It remains, therefore, to be considered what quality of “proof” the statute requires to support a petition.

The test whether an affidavit used in a former proceeding can be used in a second proceeding is whether or not the affiant can be prosecuted for perjury if the allegations prove to be false. Mojarrieta v. Saenz, 80 N. Y. 547; Langston v. Wetherell, 14 M. & W. 104. Obviously neither Mrs. Yerkes nor Mr. Soley could now be so prosecuted. It has also been held that, where proof by affidavit is required before the issue of process, the affidavit of a person who could not testify at the trial is not sufficient. Brown v. Hinchman, 9 Johns. 75; Van Steenbergh v. Kortz, 10 Johns. 167; Connell v. Lasscells, 20 Wend. 77; Smith v. Luce, 14 Wend. 237. We are therefore of the opinion that the affidavits of Mrs. Yerkes and Mr. Soley were not competent proof to warrant the issue of a citation, even assuming (but not deciding) that if they could be used they would furnish adequate proof of the facts stated in the petition.

As to the nature of the “proof” required by the statute, we are of the opinion that it must be competent legal proof, of the same quality which would be required upon a hearing of the issues raised by the petition. This seems to be the rule applicable generally where a statute requires that proof shall be made before a citation or other process may be issued. Inglis v. Schreiner, 58 N. J. Law, 120, 32 Atl. 131; Githens v. Mount, 64 N. J. Law, 166, 44 Atl. 851. And this is a reasonable rule in a case like the present, because it is not desirable that an, executor or administrator should be put to the annoyance, and the estate to the expense, of adverse proceeding based upon mere hearsay, unsupported by any positive allegation of fact by a person who may be held responsible. If it had been the intention of the Legislature that a citation for the removal of an executor or administrator might issue without affirmative legal evidence of the dereliction for which his removal is sought, it would havé been quite unnecessary to require that the petition should be sustained by proof aliunde. We are unable to find that the petition upon which the citation was issued in the present case was supported by any positive or legal proof.

The surrogate was, therefore, without jurisdiction to issue the citation, and the motion to vacate it should have been granted.

Order appealed from is reversed, with $10 costs and disbursements, and the motion to vacate and set aside, granted. All concur.  