Robertson v. McGeoch , 1845 N.Y. LEXIS 246 ( 1845 )

The Chancellor.

It does not appear in this case, except by inference, that there were any other residuary legatees of the testator; or that any person, who had any interest in the question arisipg pn this appeal, appeared before the surrogate. The objection for \yant of proper parties to the appeal is not therefore well taken. And if the renunciation of the executor was peremptory, and could not be revoked, by permission of the surrogate, before any action had taken place, founded upon such renunciation, which had altered the rights of the parties; the objection filed on the 28th of February, is a sufficient ground for reversing the order of the 5th of March, 1844, which directed letters testamentary-to be issued notwithstanding such objection. It is true, the surrogate in fact decided the objection in favor of the respondent, on the 80th of January, when he held that the executor might be allowed to retract his renunciation of the ex-ecutorship. But the order which was subsequently entered as of that time, contained no adjudication or direction that letters testamentary should issue to the executor. And even if it had contained such a direction, the time for appealing from that order had not expired on the 5th of March. For the time allowed for appealing, from a decree or order of a surrogate, does not commence running until such decree or order is entered. And from the surrogate’s return, it is evident that the order entered as of the 30th of January, was not actually settled and entered, by the surrogate, previous to the 28th of February; as it recites the contents of an affidavit filed with the surrogate on the last mentioned day ; which affidavit was sworn to in Troy only two days previous to that time. The only real question which requires consideration in this case, therefore, is whether it was competent for the surrogate to allow the respondent to retract, and to grant letters testamentary to him, notwithstanding his previous renunciation of the executorship.

It appears to be well settled that where there are several executors, and one of them renounces, and letters testamentary are thereupon issued to the others, he may retract, as a matter of course, after the death of the others; and may have letters testamentary granted to him. (9 Coke’s Rep., Fra. & Thomas’ ed., 66, note B. Arnold v. Blencowe, 1 Cox’s Ca. 426. House v. Lord Petrie, 1 Salk. 311.) But where all the executors renounce, and administration with the will annexed has been actually granted, it is too late to retract the renunciation, at least during the life of the administrator. (Toller’s Law of Ex. 422. Rob. on Wills, 171.) And in a recent case in England, it was held by the prerogative court of Canterbury, that where such administration had been granted, upon a renunciation by the executors, they could not retract such renunciation, even after the death of the administrator; as it might interfere with the rights of other parties to revive a chain of executorships, which had once been broken by the renunciation of the executors who formed one of the links in such chain. (3 Addams' Eccl. Rep. 273.) That objection, however, could not be urged in this state, since the adoption of the revised statutes; which have taken away the right 'of an executor of an executor to administer the estate of the original testator.

In England, the executor may be permitted to retract his renunciation at any time before other parties have acquired rights, by the action of the probate court upon such renunciation. In the case of The King v. Simpson, (1 Wm. Black. Rep. 456; 3 Burr. Rep. 1463, S. C.) the question was discussed, upon an application for a mandamus to compel the judge of the prerogative court to allow an executor to retract; but it was not decided, because there was a compromise between the parties litigant. But in Thompson v. Dixon, (3 Addams' Rep. 272,) Sir John Nicholl, the judge of the prerogative court of Canterbury, allowed an executor who had formally renounced, for the purpose of being examined as a witness, to retract his renunciation and to take out letters testamentary upon the will of the testator. And in McDonnell v. Prendergast, (3 Hag. Eccl. Rep. 212,) the same learned civilian decided, that an executor who had renounced, had a right to retract hi's renunciation, at any time before the grant of administration with the will annexed. And similar decisions are referred to in that case, as having been made by the same ecclesiastical court, in 1717 and 1741. (See also Hayward v. Dale, Lee's Eccl. Ca. 333, which is cited in Rex v. Simpson'.) Stich appeals therefore to have been the law in England, eVen previous to the revolution. And there is nothing in the provisions of the revised statutes Which is inconsistent with the decisions referred to; although the form in which a renunciation shall be thade, and authenticated and preserved, was expressly provided for in the revision of 1830.

The order appealed from is therefore affirmed, with costs.