Popham v. Spencer

The Surrogate.—The petition has a two-fold object; 1st, the rendering of an account by the executrix of the executor, under section 2606 of the Code; and 2d, the appointment of an administrator with the will annexed, under section 2693. The proceedings in each case are separate and distinct, and are improperly sought to be united. In the first, the only person to be cited is the executrix of the executor, and in the latter, all having a prior or equal right with the petitioner. The decree to be entered in each proceeding is different. As the petitioner cannot sue herself, she cannot avail herself of the provisions of the former section to cite herself as the executrix of Popham, to account to herself as a legatee of Spencer ; and, under the latter section, her petition is defective in not pointing out, as provided by section 2660, by name, herself or some other person or persons having a prior right, to whom she desires such letters of administration to be awarded. It does not show, as it should, the relative rights of any of the persons named in it.

The petition must, therefore, be dismissed, without prejudice to the right o£ the petitioner to renew the application, in a proper form, for the appointment of a successor to Mr. Popham.

Although the will of Mr. Popham was proved in New York, and the Surrogate of that county has exclusive jurisdiction over his estate, and control over his executrix in respect to it, yet section 2606 confers upon me jurisdiction over her, when properly invoked, so far only as the estate of Spencer is concerned. As there does not appear to be any provision made for a voluntary accounting by her, I will entertain an application made by any person designated in that section as having a right to call her to account.

, Ordered accordingly.