Opinion
March 14, 1945.
Present — Taylor, P.J., Dowling, Harris, McCurn and Larkin, JJ.
Motion to stay the execution of the order of this court denied. Memorandum: The contestants have perfected an appeal to the Court of Appeals from the decree admitting the will in question to probate. The contestants move for an order staying the Surrogate from issuing letters testamentary pending the disposition of the appeal to the Court of Appeals. The Surrogate has deferred the issuance of letters pending the application to this court for such stay. Since the contestants have perfected their appeal, the undertaking to perfect the appeal automatically stays the issuance of letters unless the Surrogate hereafter should deem it necessary for the protection of the estate to issue letters as provided in section 87 of the Surrogate's Court Act. ( Matter of Gihon, 29 Misc. 273, affd. 49 App. Div. 635; Matter of Miller, 167 Misc. 721; Civ. Prac. Act, §§ 573, 593.) The motion should be denied.