In re the estate of Whittemore

The Surrogate. This matter comes before me on the petition of the general guardian of an infant, appointed in a foreign jurisdiction, for the payment to him of certain moneys bequeathed the infant by the will of the deceased. The petition is signed by one as attorney for the petitioner and is verified by the attorney. It is conceded that to sustain the application ancillary letters in this state are necessary. The executors upon the sole ground that, under § 2838 of the Code of Civil Procedure, ancillary letters could only be granted by this court upon the written petition of the foreign guardian, duly verified, oppose the application. The letters objected to have been issued upon a petition in the name of the guardian not signed by him but by attorney and verified by the attorney alone. Counsel have not submitted any authorities, and I have been unable to find any bearing on the question save the case of Russell v. Hartt, 87 N. Y. 19, where it was held, that, where a legatee and executrix named in a will, by a power of attorney duly executed, appointed another her agent and attorney in her name and place to present the will for probate, to have the same duly proved and to ask for and receive letters of administration, the attorney properly acted in the premises. The objection to the present application however, seems to me to be in the fact that there is no proof of the authority in the attorney to act, save in the [157] declaration of the attorney, and while it might he sufficient if a power to act was produced, I suggest, that the guardian in order to avoid any objection as to his right to delegate his power could with equal facility sign and verify a new petition for ancillary letters. Application denied with privilege to renew.