Opinion
February 16, 1973
Appeal from the Wayne County Surrogate's Court.
Present — Goldman, P.J., Del Vecchio, Witmer, Cardamone and Simons, JJ.
Order unanimously affirmed with costs. Memorandum: The decedent died in an automobile accident and was survived by his 19-year-old wife and a baby. Because of her infancy, the wife petitioned the Wayne County Surrogate to grant letters of guardianship of her property to respondent, her father. Letters of guardianship were awarded to respondent. Thereafter the decedent's father (appellant) petitioned for letters of limited administration on the decedent's estate as did respondent. Following a hearing, the Surrogate awarded limited letters of administration in the decedent's estate to the respondent. The appellant thereafter petitioned to have respondent's guardianship letters vacated claiming lack of fitness. The Surrogate incorrectly concluded that appellant had no standing to question respondent's appointment. Since appellant is unrelated to the infant and the infant petitioned for appointment of her father (respondent) as her guardian, appellant was not entitled to notice of such application (SCPA 1705). Nevertheless, SCPA 711 empowers any person in behalf of an infant to petition for a decree revoking letters, which the Surrogate will grant "where the interests of the infant will be promoted by the appointment of another person as guardian" (SCPA 711, subd. 9). We affirm the Surrogate's determination in this matter because the appellant's petition to revoke the letters contains no factual allegation to warrant the conclusion that the infant widow's interests would be promoted by the appointment of appellant. The petition contains merely opinions and beliefs conclusory in nature and not the required factual allegations ( Matter of Gori, 129 Misc. 541: 2 Warren's Heaton Surrogates' Court, § 132, par. 2, cls. [d], [f]; 1 Harris, New York Estates Practice Guide, § 381).