In re the Personal Estate of West

Hardin, P. J.: ■ West, the husband of the intestate, was entitled to letters of administration upon his deceased wife’s estate. About the time the surrogate was to grant letters of administration Mrs. Jones and her friends applied to West for his consent that Mrs. Jones be associated with him as administratrix, and a representation and statement were made to West that there would be no conflict of interest as to the estate, and in the interest of the establishment of peaceful relations between West and his sister-in-law, Mrs. Jones, he was induced,' upon such representations as were then made to him that there would be no conflict of interest, to consent that Mrs. Jones be associated with him as administratrix. As soon as the day for an appraisal was named an attempt was made to appraise the property of which the intestate died possessed. Mrs. J ones set up a claim to a large portion of the personal property, averring that it belonged to her and her sisters and brothers under the will of their father, Richard Reynolds, and Mrs. J ones refused to produce for appraisal a large portion of the personal property which the intestate had enjoyed the use of in her lifetime, and the referee finds that on the occasion of the attempt to appraise the property Mrs. Jones “became much excited and exhibited considerable spirit, feeling and temper towards petitioner, and used language towards, to and concerning him that was disrespectful, unbecoming and uncalled for, and not provoked by anything he said.” A careful inspection of the evidence taken before the referee in the protracted hearings had before him, as well as the consideration [296] of the matters disclosed in the affidavits used before the surrogate, lead'to the conclusion that the representations and suggestions made at the time that West was induced to consent that Mrs. Jones be associated with him as administratrix, were false and unfounded, and that the grant of letters to Mrs. Jones “was obtained by a false suggestion of a material fact.” Under the Revised Statutes it was held that surrogates have power to revoke letters whenever it shall appear to them that they have been granted on or by reason of false representations made by the persons to whom the same were granted. (Perley v. Sands, 3 Edw. Ch. R., 325.) Code of Civil Procedure, in section 2685, authorizes a creditor or person interested in an estate to present a petition to the surrogate from whom letters issue, and to aslc to have a decree revoking letters, viz.: “ Where the grant of hie letters was obtained by a false suggestion of material fact.” Under this provision of the section evidence was taken which was entirely sufficient to satisfy the surrogate that West’s consent “was obtained by a false suggestion of material fact.” Notwithstanding the fact that Mrs. Jones, in her own behalf and in behalf of her sisters and brothers, claimed a large portion of the personal property under the will of their father, and that it did not pass to the intestate,, and that she was not the owner of it at the time of her death, she might have consented to the inventory of the property, with reasonable and suitable notice that she insisted that it did not belong to the intestate, but, on the contrary, she stubbornly refused to have it inventoried or appraised, and the evidence taken before the surrogate furnishes strong ground for the assertion that she has been guilty of misconduct in the execution of the office of administratrix, and an inspection of the evidence leads naturally to the conclusion that “ by reason of misconduct in the execution of her office she has become unfit for the due execution of the office.” In section 2687 it is provided that, upon the return of a citation issued as prescribed in the last section, “ if the objections, or any of them, are established to the surrogate’s satisfaction, he must make a decree revoking the letters issued to the person complained of.” We think the surrogate was called upon to determine somewhat [297] summarily the issues presented to him. (McGregor v. Buel, 24 N. Y., 169 ; Matter of Chase, 32 Hun, 320.) Without passing upon the question of whether the claim set up. by Mrs. Jones, in her own behalf and that of her brothers and sisters, was valid, or whether the personal property, which was the subject of dispute at the time the appraisers assembled, was the property of the intestate or not, we are of the opinion that the evidence abundantly supports the decree pronounced by the surrogate revoking letters of administration issued to Mrs. Jones. Evidently she intended then, and still intends, to dispute the title set up by the husband of the intestate to the property, a large- portion of the property found in the possession of the intestate. The determinar tion of the question in that regard need not be had on this occasion. We are of the opinion that the decree of the surrogate revoking letters of administration to Mrs. Jones should be sustained. Decree of the surrogate of Oneida county revoking letters of administration to Mary K. Jones affirmed, with costs against the appellant. BoaRDMáN and Follett, JJ., concurred. Decree of the surrogate revoking letters of administration to-Mary R. Jones affirmed, with costs of this appeal against appellant, personally.