Legal Opinion

In re the Application for Temporary Letters of Administration upon the Goods, Chattels & Credits of Durban

Appellate Division of the Supreme Court of the State of New York

Decided October 6, 1916PublishedCited by 10 opinions

Appeal by the appellants from two orders of the Surrogate’s Court of the county of Richmond, entered in the office of said Surrogate’s Court on the 21 th day of May, 1916, and the 14th day of September, 1916, respectively. Before the surrogate of Richmond county had admitted this will to probate, he appointed, as temporary administrator, Mr. Apel, the executor named in the will. On probate of the will Mr. Apel received the usual letters testamentary.

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Appeal by the appellants from two orders of the Surrogate’s Court of the county of Richmond, entered in the office of said Surrogate’s Court on the 21 th day of May, 1916, and the 14th day of September, 1916, respectively. Before the surrogate of Richmond county had admitted this will to probate, he appointed, as temporary administrator, Mr. Apel, the executor named in the will. On probate of the will Mr. Apel received the usual letters testamentary. This court, however, reversed the decree probating the will, and directed a new trial (173 App. Div. 949). Thereafter Mrs. Richter, the next of…

1Opinion of the Court

Putnam, J.:

The first ground raised here is that Mr. Apel’s original appointment as temporary administrator revived on reversal of the probate, and hence there was no vacancy to be filled. I think this is unsound (Matter of Choate, 105 App. Div. 356. See Code Civ. Proc. § 2555), and the confirmation of this view appears from the fact that all parties have acted on the firm idea that a vacancy existed to be filled. Section 2624 of the Code of Civil Procedure, to the effect that a decree of probate must revoke former letters of administration, is only declaratory. If the probate decree should…

2Cases cited1 opinion

  1. In re Last Will & Testament of HassettAppellate Division of the Supreme Court of the State of New York · 1905

3Cited by10 opinions

  1. In re Proving the Last Will & Testament of PearsonAppellate Division of the Supreme Court of the State of New York · 1930
  2. In re the Application for Temporary Letters of Administration upon the Goods, Chattels & Credits of WatsonNew York Surrogate's Court · 1924
  3. In re the Probate of the Last Will & Testament of BurnhamNew York Surrogate's Court · 1921
  4. In re the Probate of the Last Will & Testament of EggswareNew York Surrogate's Court · 1924
  5. In re the Probate of the Will of MottekNew York Surrogate's Court · 1957

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