In re the Estate of Governor , 203 N.Y.S.2d 511 ( 1960 )

S. Samuel, Di Falco, S.

This is an application to revoke letters of administration on the ground that respondent obtained her appointment by the false suggestion of a material fact. Petitioner is a nephew and alleges that the petition for letters failed to name him and his sister, who are children of a predeceased brother, as distributees. He also prays that letters issue to him, and the niece has renounced her right thereto. Respondent administratrix obtained letters as the nominee of her mother, a sister of decedent. The original petition set forth said sister and another sister as the only distributees and they both renounced in favor of the nominee. After filing an answer which contained inconsistent denials, respondent has moved to dismiss the application to revoke. It now appears as an admitted fact from her supporting papers that decedent left surviving the two sisters and the nephew and niece aforesaid. The administratrix persists, however, in denying the status of said niece and nephew not only respecting their right to letters but even as to their right to share in the estate as distributees. This is clearly in error. It is true that either sister .had a superior right to letters as against the nephew and niece (Surrogate’s Ct. Act, § 118) but said sisters having renounced, the nephew and niece had a right to letters superior to any nominee. The latter could only be appointed on consent of all the distributees. The failure to include the niece and nephew as distributees in the petition for letters constitutes the false suggestion of a material fact which requires the granting of the application to revoke (Surrogate’s Ct. Act, § 99, subd. 4).

Submit decree on notice, revoking letters of administration, directing account and granting letters to petitioner.