In re the Judicial Settlement of the Account of Hill , 43 Misc. 583 ( 1904 )

Lester, S.

Section 2670 of the Code of Civil Procedure authorizes the surrogate, in his discretion, on the application of a creditor or a person interested in the estate, to issue to one or more persons competent and qualified to serve as executors; letters of temporary administration when, for any cause, delay necessarily occurs in the granting of letters of administration or in probating a will.

The counsel for the executrix insists that the section referred to contemplates the pendency of some proceeding for the probate of a will or the issuing of letters of administration in chief as a necessary foundation for the exercise by the surrogate of the power conferred upon him to issue letters of temporary administration.

Surrogate Rollins so held in Tooker v. Bell, 1 Dem. 52, and Surrogate Bergen of Kings county held the same doctrine in Sawmill Company v. Dock, 3 id. 55.

So far as I am able to discover, the doctrine of these cases has never been disturbed, nor has any change in the statute authorized a different construction.

It is my opinion that, in the present case, the Surrogate’s Court of Saratoga county was without jurisdiction to appoint a temporary administrator of the decedent, and that the attempt to do so was unauthorized and the letters of temporary administration were void.

It follows, as a natural consequence, that the present proceeding cannot be maintained. The surrogate has no jurisdiction to decide any question that may be involved in it, and is powerless to take any action, except to dismiss the proceeding.

An order should be entered dismissing the proceeding, but, under the doctrine of Bunnell v. Ranney, 2 Dem. 327, without costs.

Decreed accordingly.