WHITLOCK V. WHITLOCK. fant was not a party. On attaining majority, the legatee petitioned for payment of his legacy.— Held, that the executors were not discharged by the payment or decree, and must pay again. PETITION by Andrew H. Whitlock for payment of a legacy; opposed by Andrew M. Whitlock, surviving executor of decedent's will. The facts appear sufficiently in the opinion. ROE & MACKLIN, for petitioner. THEO. F. MILLER, for executor. THE SURROGATE.-The decedent died in 1874, leaving a will wherein his nephew, the petitioner in this proceeding, was bequeathed a legacy of $500. The petitioner, who has but recently attained his majority, asks that the executors be directed to pay this legacy. The surviving executor alleges, by his answer, that, in 1874, such legacy was paid by the executors to the petitioner's father, and that, subsequently, after the account of the executors had been submitted to the Surrogate, credit was allowed them, in its final judicial settlement, for the payment of the legacy in question. It is clear, however, that such decree is not binding upon this petitioner. He was not a party to it; he was never served with a citation to attend the accounting, and he was represented thereat by no general or special guardian. It is, also, clear that the executors did not discharge themselves from liability to this petitioner, by the payment to his father in his behalf. The father held no letters of guardianship, and, as natural guardian, was not entitled to receive the legacy bequeathed to his son (3 Rev. Stat., 7th ed., 2301, sec. 48.; Fonda v. Van Horne, VOL. I.-11 WHITLOCK V. WHITLOCK. 15 Wend., 633; Genet v. Tallmadge, 1 Johns. Ch., 3; Williams v. Storrs, 6 Johns. Ch., 357; Hyde v. Stone, 7 Wend., 354; Thomas v. Bennett, 56 Barb., 198; Brown v. Canton, 4 Lans., 413; Loomis v. Cline, 4 Barb., 455). It is urged, by the respondent, that the father was entitled to receive the bequest as guardian in socage. But the claim is untenable. It does not appear that any real estate became vested in the petitioner during his minority, a circumstance without which such guardianship could not be created (3 Rev. Stat., 7th ed., 2162, sec. 5; Fonda v. Van Horne, supra; Sylvester v. Ralston, 31 Barb., 289; Emerson v. Spicer, 46 N. Y., 596). It cannot, therefore, be successfully claimed that payment was made to the father as guardian in socage, even if it be conceded that such payment would operate to discharge the executor. But such payment would not have that effect. The Revised Statutes provide (part 2, ch. 6, tit. 3, §§ 47, 48; 3 Banks, 7th ed., 2301) that a minor's legacy, if of the value of fifty dollars or more, may be paid, under the direction of the Surrogate, to such minor's general guardian, upon his giving security for its faithful application, and that, if there be no such guardian, or the payment of the minor's legacy be not directed by the Surrogate, such legacy shall be invested in securities for the minor's benefit, and shall be kept in the Surrogate's custody, until the minor comes of age. The respondent erroneously claims that he is, at least, entitled to be credited with $50 under the provisions of section 46, tit. 3, ch. 6, part 2 of the Revised Statutes (3 Banks, 7th ed., 2301). That section declares that a minor's legacy, "if under the value of fifty dollars," may DREXEL V. BERNEY. be paid to the father; but it has no bearing upon a case like the present. It gives no authority to pay the father any portion whatever of the child's legacy, save in cases where the entire amount of such legacy is less than $50. NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-February, 1883. DREXEL V. BERNEY. In the matter of the estate of ROBERT BERNEY, deceased. The authority of a Surrogate's court to revoke letters testamentary upon petition is derived exclusively from Code Civ. Pro., § 2685. A debtor to the estate of a decedent is not a "person interested" therein, within the meaning of the provision of that section permitting a person so interested to apply for the revocation of letters issued to one as executor of the decedent's will. It seems, that there is no statutory provision, under which one whose relation to such an estate is that of a debtor or possible debtor thereto can be recognized as entitled to be heard in opposition to a grant of letters thereon; and claims for the revocation of letters should not receive more favorable consideration than objections to the grant thereof. PETITION by Francis A. Drexel and others for the revocation of letters testamentary issued to decedent's widow, Louisa Berney. The facts appear sufficiently in the opinion. TRACY, OLMSTEAD & TRACY, for petitioners. LORD, DAY & LORD, for executrix. THE SURROGATE.-This is a petition for the revocation DREXEL V. BERNEY. of letters testamentary issued out of this court to decedent's widow, Louisa Berney, on the 25th of May, 1881. The testator died at Paris, France, in the year 1874, leaving a will and codicil, wherein he appointed, as his executors, his brother James Berney and others, and as his executrix, Louisa Berney, his wife. In February, 1875, certain proceedings were had in a probate court in the State of Alabama, whereby the will and codicil were there admitted to probate. James Berney was subsequently granted ancillary letters testamentary by this court. In July, 1880, he died. In May, 1881, letters testamentary were issued by the Surrogate of this county to Louisa Berney, under circumstances disclosed in the moving papers. On the 22d of June, 1875, Drexel, Morgan & Co., bankers, of this city, received from Cazade, Crooks & Reynaud, claiming to be the lawful attorneys of James Berney, executor, certain United States bonds, of the face value of two hundred thousand dollars, which were registered in the name of Robert Berney, the decedent. Louisa Berney, as execu trix, lately commenced, in the United States Circuit court of this district, a suit against Drexel, Morgan & Co. and others, for the conversion of the bonds in question. The defendants in that action sought to maintain that the letters testamentary of Louisa Berney were illegal and void, upon certain grounds which are among those alleged in the present proceeding, as a cause for the revocation of such letters. It was, however, held that the validity of Mrs. Berney's appointment could not be attacked in the United States court, and it was intimated that, if the parties desired relief of that nature, they must seek it in this tribunal. The affidavits and DREXEL V. BERNEY. papers which have been submitted upon the present motion are very voluminous, and raise many interesting and important issues as to the validity of the original probate in Alabama, the effect of certain proceedings in the English courts and in French tribunals, the validity of the letters issued to the executrix, etc. In the view, however, which I am compelled to take of this case, it is necessary to pass upon only one of the questions submitted for my determination. The claim of the counsel for Mrs. Berney, that the petitioners have no such relation to this estate as empowers them to maintain a proceeding for the revocation of her letters, seems to me to be well founded. I feel compelled to hold that, within the limitations of the Code of Civil Procedure, debtors of an estate (and it is only as debtors, or as possible debtors, that these petitioners apply) have no right to make themselves parties to such a proceeding as the present. The authority of the Surrogate's court to revoke testamentary letters is solely derived from section 2685. That section empowers such a court, from which letters testamentary have been issued, to revoke the same for certain specified causes; and it also establishes the procedure by which, in such cases, the action of the court must be invoked. It requires that, at the outset, there shall be filed a petition praying for revocation, and stating the grounds upon which it is sought. Leave to file such petition is conferred, by the statute, upon "a creditor or person interested in the estate of the decedent," and upon nobody else. Now, who is "a person interested in the estate," within the meaning of section 2685? |