FOWLER V. WALTER.

PETITION, by Jonathan O. Fowler, for the grant of letters of administration, with the will of decedent annexed, to the public administrator in the city of New York; opposed by Thomas H. Walter, decedent's son, and others. The facts appear sufficiently in the opinion.

JOHN A. BRYAN, for petitioner.

T. G. RITCH, for Harriet A. Walter.

G. W. ELLIS, for Thos. II. Walter.

E. C. BOARDMAN, for executors of Andrew Boardman.

THE SURROGATE.-This is a contested application for the appointment of the public administrator, as administrator, with the will annexed, of the goods, chattels, etc., of James R. Walter's estate. The petitioner in this proceeding became, in September, 1859, the assignee of a twenty-one years' lease of certain premises in New York city. In April of that year, the lease had been executed to one Alvin Higgins by Ann Walter, as executrix, and Andrew Boardman, as executor, of an instrument which had been theretofore established as this decedent's will. The lease provided that, at its expiration, the buildings and improvements should belong to the lessors, unless, meantime, the premises should be destroyed by fire and should be rebuilt by the petitioner. In that event, it was agreed that he should be to some extent reimbursed out of any insurance moneys which the lessors might receive, the property being insured at the time in the sum of $40,000. The contingency just referred to subsequently arose. The buildings were consumed in 1874, and the lessors received about $37,500 insurance. Thereupon an agreeVOL. I.-16

FOWLER V. WALTER.

ment was executed, by the petitioner on the one hand, and the lessors-Ann Walter, executrix, and Andrew Boardman,executor-on the other, which provided, among other things, that, in case the petitioner should erect more valuable buildings than those which had been destroyed, a portion of the necessary expenses would be defrayed by the lessors at the expiration of the lease, unless, meantime, the heirs-at law of the decedent should have come into possession of the property, in which event the agreement made certain provisions which are foreign to this inquiry. The petitioner proceeded to build. In 1880, the lease having terminated, he commenced, in the Supreme Court, an action against various parties, including Andrew Boardman, as sole surviving executor of decedent. The action is still pending. One of its objects is the ascertainment of the rights of the various parties to the lease and the supplementary agreement. Mr. Boardman has died during the pendency, and this proceeding before the Surrogate is brought for obtaining the appointment of some person as his successor in interest, against whom the Supreme Court action may be continued.

The answer of Thomas H. Walter, one of decedent's children and heirs-at-law, discloses, that, in June, 1868, a judgment was entered in the Supreme Court, whereby it was determined that the paper, which had been theretofore admitted to probate as decedent's will, was not in truth such, and that the decedent died intestate. In pursuance of this judgment, the premises in question were surrendered to the heirs-at-law, subject (in the same manner as if such heirs-at-law had been originally the lessors) to the then unexpired lease.

It is further alleged in the answer that Andrew Board

FOWLER V. WALTER.

man was fully discharged from his trust in September, 1869, and that, before the commencement of the petitioner's action in the Supreme Court, the administration of decedent's personal estate had been concluded.

In view of the facts above stated, this application must be denied, upon several grounds.

1st. The petitioner has no standing in court. No person is entitled under section 2643 of the Code, unless he is either (a) "a creditor of the decedent" or (b) “a person interested in the estate." The petitioner does not come within class (b); for the definition, in section 2514, of the expression "person interested" excludes creditors absolutely. Nor does he belong to class (a) for, though he claims to be in some sense a creditor of this estate, he is very clearly not "a creditor of the decedent."

2d. This petition, even if it is deemed to be made by a competent person, is defective in form. Its prayer should be for the appointment of the petitioner himself, and the citation should correspond with the petition, and should issue to all persons having a prior right (see Batchelor v. Batchelor, ante, 209; Code, § 2644). Here the public administrator, who has a prior right, has not been cited, and the petitioner asks for the appointment of such administrator and not for his own appointment.

3d. It does not appear that there are any assets of James R. Walter's estate not already administered upon and distributed, and until this is made apparent, there is manifestly no need of further administration. Pumpelly v. Tinkham (23 Barb., 321), cited by counsel for the petitioner, is not at odds with this view. There the application for appointment of an administrator with the will annexed alleged that the executors had died, leaving

MATTER OF GERARD.

unadministered certain property and assets of their testator. Counsel for petitioner claims that the judgment setting aside the will was collusively obtained, and that, if it shall hereafter be declared void, the rents which have been collected by the heirs-at-law, and even certain claims which they now make against himself, will be discovered to be assets of the decedent's estate. This possibility of assets is not assets, however, and, while the judgment stands, can never become such.

4th. Another fatal objection to the petitioner's claim is also suggested by the existence of this judgment. The so called will has been set aside, and there is no greater propriety now in appointing an administrator with the will annexed than there would be in making such an appointment, if probate had been refused, in the first instance, to the paper propounded as decedent's will.

Petition denied.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-May, 1883.

MATTER OF GERARD.

In the matter of the estate of JAMES W. GERARD, de

ceased.

An executor and general legatee who, when his legacy becomes payable, is in possession of funds of decedent's estate applicable thereto, and suffers his claim to remain uncollected, cannot afterwards have interest thereon.

MATTER OF GERARD.

Where an executor is denied compensation in the will, the Surrogate cannot allow him commissions on the ground that, by the non-action of a co-executor, his labors have been more onerous than testator anticipated. Testator, in a codicil to his will, provided: “In a former codicil, I gave P., as one of my executors, five hundred dollars a year for a certain number of years. I have made no provision to pay my son (G.) and B., the other executors, any commissions, because they will work for themselves and their children." B. having died at an early stage of the administration, whereby the entire burden of the executorial duties fell upon P. and G., the latter, on the accounting, asked for the statutory compensation, notwithstanding the inhibition of the will.

Held, that there was no evidence of an intent, on the part of the testator, that the allowance to P., or the denial of compensation to G., should be dependent on the extent of their services or the magnitude of their responsibility, and that the application must be denied.

THIS was the settlement of the decree upon the judicial settlement of the account of James N. Platt and James W. Gerard, as executors of decedent's will. Thomas C. T. Buckley, named in the will as an executor, never qualified, and died five months after decedent's death. James N. Platt asked to have inserted in the decree an allowance of interest upon an annual stipend given to him in lieu of commissions. James W. Gerard asked for commissions, as executor. The other facts appear sufficiently in the opinion.

JOHN M. BOWERS, for executors.

H. KETTELL, for F. H. Wiggin, legatee.

JAMES WOOD, for Mrs. Slack.

CAMPBELL H. YOUNG, special guardian.

THE SURROGATE.-Now that the decree is about to be entered, whereby the account of decedent's executors and trustees is to be judicially settled, two questions are presented for my determination.