In re the Probate of the Last Will & Testament of Barmeier , 248 A.D. 636 ( 1936 )

In a proceeding in the Surrogate’s Court of Queens county, brought to revoke letters testamentary, decree modified by striking therefrom the first ordering paragraph, marked (a), and as so modified unanimously affirmed, with costs, payable out of the estate, to all parties appearing and filing briefs, except appellant Reese. In our opinion, the Surrogate’s Court of Queens county had jurisdiction to grant' letters testamentary upon this estate. Its decree, granting such letters, was, therefore, not void, although the appointment of the respondent Brooklyn Trust Company was mistakenly made. At most, the decree was merely voidable and such letters might, in the discretion of the Surrogate’s Court, be revoked upon the application of a party aggrieved. We are of the opinion, however, that such discretion should not be exercised in favor of the appellant Reese, since he is not a party interested in the estate, nor a creditor thereof, nor is he aggrieved, because he will be amply protected by any judgment entered in the action in the Canadian court. Present — Lazansky, P. J., Young, Hagarty, Carswell and Taylor, JJ. [156 Misc. 657.]