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In the Matter of the Probate of the Last Will and Testament of Harry A. Barmeier, and the Application of Thomas J. Reese to Revoke Letters Testamentary and Trusteeship Issued Therein to Brooklyn Trust Company, and to Vacate, Set Aside and Declare a Nullity the Decree Awarding Same. Thomas J. Reese, Appellant-Respondent Brooklyn Trust Company, as and Trustee, etc., of Hary A. Barmeier, Rosalind F. Barmeier, and Vilma Anthony, Individually and as Testamentary Guardian of the Person and Property of Harry G. Barmeier, an Infant, Respondents-Appellants Royal A. Curtis, as Special Guardian of Harry G. Barmeier, an Infant, and William A. Robinson, as Special Guardian of Lorraine Anthony, Katherine Kirst, William James Kirst and Robert E. Barmeier, Infants
In a proceeding in the Surrogate’s Court of Queens county, brought to revoke letters testamentary, decree modified by striking therefrom the first ordering paragraph, marked (a), and as so modified unanimously affirmed, with costs, payable out of the estate, to all parties appearing and filing briefs, except appellant Reese. In our opinion, the Surrogate’s Court of Queens county had jurisdiction to grant' letters testamentary upon this estate.
Its decree, granting such letters, was, therefore, not void, although the appointment of the respondent Brooklyn Trust Company was mistakenly made. At most, the decree was merely voidable and such letters might, in the discretion of the Surrogate’s Court, be revoked upon the application of a party aggrieved.
We are of the opinion, however, that such discretion should not be exercised in favor of the appellant Reese, since he is not a party interested in the estate, nor a creditor thereof, nor is he aggrieved, because he will be amply protected by any judgment entered in the action in the Canadian court. Present — Lazansky, P. J., Young, Hagarty, Carswell and Taylor, JJ. [
156 Misc. 657.]
