Opinion
April 22, 1910.
Thomas J. Farrell, for the appellant.
Monte London [ Samuel C. Worthen with him on the brief], for the respondent.
Elizabeth McGowan, one of four heirs at law and next of kin of Mary E. Donnelly, deceased, appeals from an order of the Surrogate's Court of Kings county, which directed that letters testamentary issue to the respondent as executrix under the will of the testatrix. The record does not show the contents of the will, or who was entitled to take thereunder. It appears, however, that after a contest the will was admitted to probate, and from the decree accordingly entered Elizabeth McGowan has appealed to this court. Upon the application for letters it appeared that the appellant took possession of the decedent's property upon her death and now retains it; that the petitioner did not know the value of the estate, and desired an accounting and possession of the property of her testatrix. The affidavit of the appellant states that the estate consisted of money in several savings banks, stock of the Ninth Avenue Railroad Company, jewelry and household furniture. It also alleged "that said Lizzie Riede's circumstances are such that they do not afford adequate security to the creditors or persons interested in said estate. * * *. Deponent further says that said Lizzie Riede is a person of absolutely no financial responsibility." These allegations are both conclusions, and no facts are alleged to sustain them. Mrs. Riede's character, honesty, thrift, integrity and business capacity were not challenged, and there is only the suggestion of financial irresponsibility. The absence of worldly wealth is not of itself a controlling ground for denying letters. The intention to appeal, or appeal itself, did not deprive the surrogate of the power to issue letters. Section 2582 of the Code of Civil Procedure provides: "An appeal from a decree of a surrogate, admitting a will to probate, * * * does not stay the issuing of letters where, in the opinion of surrogate, manifested by an order, the preservation of the estate requires that the letters should issue."
It follows, therefore, that the order of the Surrogate's Court must be affirmed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., BURR and CARR, JJ., concurred.
Order of the Surrogate's Court of Kings county affirmed, with ten dollars costs and disbursements.