Opinion
May, 1905.
D.B. Lucey, for the appellant.
Ledyard P. Hale, for the respondent.
When the decedent died he left no relatives or next of kin within this State, and when the letters of administration were issued to Michael H. Flaherty, some six months after such decedent's death, there was no creditor against his estate, except the Rossie Iron Ore Company, and neither next of kin nor creditor had applied for such letters. The said Flaherty was the first and the only person who had then applied, and under the provisions of section 2660 of the Code of Civil Procedure there was no other person then in the State who had a right to such letters prior to him. The only creditor being a corporation that was not entitled to take out letters ( Matter of Thompson's Estate, 33 Barb. 334), and there being no next of kin within the State, there was no person to whom a citation should have been issued (Code Civ. Proc. §§ 2660, 2663), and, therefore, Flaherty being, under section 2660 of the Code of Civil Procedure, a "person * * * legally competent," his appointment was not an irregular or invalid one.
The appellant Rhoda, now claiming to be a creditor of the deceased, asks to have the letters so issued to Flaherty revoked. Concede that he, Rhoda, is now a creditor as assignee of the Rossie Iron Ore Company, and, therefore, under the language of section 2685 of the Code of Civil Procedure has a standing in court to make such application, it is clear that he was not such a creditor when the letters were issued. At that time he had no interest whatever in that proceeding. I so conclude because the claim that he advanced one dollar and fifty cents for digging grave out of his own pocket was so clearly done as an employee of, and on behalf of the Rossie Iron Ore Company, that it is plain that such company, and not Rhoda individually, became the creditor against deceased. Not being then a creditor, he was not entitled to any citation, and his rights were not in any way affected by Flaherty's appointment. But concede that he may, under said section 2685, make this application, the only ground for revocation given by such section which he can rely upon is that the grant of such letters was obtained by the false suggestion that there were no creditors. It is true that there was one creditor, but it was not this appellant. As stated above, it was a corporation to which letters could not have been issued, and, therefore, the proceeding and the result would have been the same had the fact that such company was a creditor been stated in the petition. Therefore, though such suggestion was inaccurate and false, it was not ground for revoking the letters. (Code Civ. Proc. § 2687.) None of the other grounds for revocation allowed by such section 2685 were established by the appellant, and hence his application was properly denied.
It is urged by the appellant that the petition upon which Flaherty was appointed administrator states all the material facts upon information and belief merely, and that it does not aver even in that manner that decedent was a resident of St. Lawrence county, or of this State, and that it was utterly insufficient to give the surrogate of such county jurisdiction to issue letters upon his estate. None of the defects suggested by this objection seem to be available upon this proceeding. They are not grounds for a revocation given by section 2685 of the Code of Civil Procedure. But it appears upon the hearing of this application that all the material facts necessary to authorize the issuing of letters to Flaherty actually did exist at the time such letters were issued. Thus, Ciotto had died in the county of St. Lawrence, leaving personal property therein, and at that time, at least, having his domicile therein; that he had no next of kin within the State and no creditors, except the said company; and even though such facts did not sufficiently appear by the said petition, inasmuch as they were made to appear upon the application to revoke the letters, the surrogate was justified in refusing to revoke them.
The order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.