In re the Estate of McDonald

Scott, J.: I do not think that the appellant’s right to act as administrator of the estate of Alexander McDonald, deceased, terminated ipso facto upon the revocation of the letters previously issued to the coadministrator, Edmund K. Stallo. I attach no [87] importance to the phraseology of the letters of administration issued to the trust company. It was for the surrogate to determine whether or not .letters should issue. Having decided that they should, their effect and the authority they conferred was fixed hy the Code of Civil Procedure and could neither be enlarged nor restricted by the surrogate. It is well understood that the Surrogate’s Court, while a court of record, is a court of special and limited jurisdiction which is wholly statutory, and that it possesses no inherent jurisdiction beyond that conferred by statute. To determine the effect of letters issued by it and its power to revoke letters once issued reference must be made to the statutes. At the outset it may be useful to point out that the order appealed from can be upheld, if at all, only upon the ground that the right of the trust company to act as administrator terminated when Stallo’s letters were revoked. It is true that the motion papers bristle with charges of bad faith and mal-administration on the part of the trust company, and that both the learned surrogate and my brother McLaughlin refer to these charges as in some way affording justification for the revocation of the letters while not in terms placing the revocation upon this ground. It is easily demonstrable, however, that we cannot affirm the order on this ground. The surrogate alone can remove an administrator (Hood v. Hood, 2 Dem. 583; affd., sub nom. Matter of Hood, 98 N. Y. 363), and the reasons for which he can revoke letters of administration are explicitly specified in section 2685 of the Code of Civil Procedure. His authority to remove executors and administrators and to revoke letters for cause is solely derived from the Code. (Matter of Estate of Corn, 9 Civ. Proc. Rep. 243, per Rollins, S.), and before he may act he must find as a fact that some of the causes specified in section 2685 exist. Nor may he revoke letters under this section where, as in this case, the charges of misconduct are denied, without taking evidence and making findings of fact. (Matter of Dittrich, 120 App. Div. 504; Matter of Monroe, 142 N. Y. 484; Matter of Scott, 49 App. Div. 130.) In the present case the surrogate took no evidence and has made no findings of fact. His order of revocation, therefore, cannot be upheld upon the ground that the trust company has [88] been guilty of misconduct such as is specified in the Code as a ground for revocation. This brings us back to the question above indicated whether or not the authority of the trust company to act as administrator terminated ipso facto upon the revocation of the letters issued to its coadministrator. It is, perhaps, significant that the researches neither of the learned surrogate nor those of Mr. Justice McLaughlin nor those of the counsel for the respondent have been able to find any authority to the effect that the revocation of the letters of the coadministrator necessarily revoked or called for the revocation of those of the trust company. The question, although not directly involved, was touched upon in Steele v. Leopold (135 App. Div. 247, 253), wherein Mr. Justice Laughlin said: “No objection was taken by answer to the right of the plaintiff to continue the action, based on the ground that his appointment as administrator with the will annexed, although valid when made, fell with the revocation of the letters to Helen Steele. G-wynne, nor is that point presented on the appeal and, therefore, it is not decided. It may be observed, however, that it would seem from the provisions of section 2591 of the Code of Civil Procedure that when the Surrogate’s Court obtains jurisdiction, as it clearly did by the petition, to issue letters of administration, and the issuance thereof is authorized, they remain valid until the decree pursuant to which they were issued is reversed, or' until they are revoked by an order of the Surrogate’s Court, and that they cannot be questioned collaterally in the absence, of course, of fraud or collusion with regard to the jurisdictional facts.” In Matter of Ireland (147 Misc. Rep. 545), where a decree had been made granting administration to a person entitled thereto, and also, upon her petition and consent, to a competent person not entitled, it was held that a joint administration was not necessary, but that upon the refusal of the person entitled to qualify, letters might notwithstanding be issued to the competent person not. entitled but -appointed with the consent of the person entitled. This decision is criticised by Mr. Jessup in his work on Surrogate’s Practice (4th ed. p. 583), but it is not wholly without support in the language of section 2660 of the Code of Civil Procedure. That section reads in part as follows: “If there [89] are several persons equally entitled to administration, the surrogate may grant letters to one or more of such persons, and administration may he granted to one or more competent persons, although not entitled to the same, with the consent of the person entitled to be joined with such person or persons.” It is to be observed that the statute does not qualify or restrict the authority to be conferred upon the “ one or more competent persons ” not entitled. All it says is that administration may be granted to them, which means administration in its ordinary sense. Nor does it in terms require that such person must act conjointly with the person entitled to administration. All it says is that administration may be granted to such competent persons with consent of the person entitled, not jointly with the person entitled, nor does it in terms require that the person entitled must also act as administrator. Matter of Campbell (123 App. Div. 212; 192 N. Y. 312) really has no bearing upon the question now under consideration. In that case the issue of letters of administration was held to have been unauthorized in the first instance because a person having a prior right had neither renounced nor been cited. The original appointment was, therefore, found to have been defective. Here there is no serious claim made that the original appointment of the trust company as administrator was unauthorized. It is attacked as having become invalid in consequence of something which has happened since the appointment was made. It would be provocative of great confusion if grants of administration, valid when made, were to be vacated whenever some condition of affairs arose which, if in existence when letters were originally issued, would have required the issuance to a different person than the one to whom they were legally issued and who were the persons then entitled to them. There is no statutory requirement that requires a vacation for this reason of letters which were authorized by law when they were issued, and, in view of the wide authority given to the surrogate to remove an administrator for misconduct, it is unnecessary for the protection of persons interested in estates to read into the statute a rule which has not been written in it. The policy of the law as expressed in the Code is in favor of unbroken continuity of administration, [90] for by section 2692 it is provided that where one of two or more executors or administrators dies or becomes incapable of administering the trust imposed upon him, or when letters are revoked with respect to one of them, a successor to the person whose letters are revoked shall not be appointed (except where the will requires it), but the other may proceed and complete the administration of the estate pursuant to the letters. In my opinion the order of the surrogate now appealed from cannot be sustained and should be reversed and the matter remitted to the surrogate for further action in accordance with this opinion. Ingraham, P. J., Laughlin and Clarke, JJ., concurred; McLaughlin, J., dissented.