#### George Gordon Hastings, as Temporary Administrator, etc., of Rosalie Tousey Hastings, Deceased, Respondent, *v.*Frank Tousey, Publisher, a Corporation, and Julia Howe, Appellants.

First Department,

January 24, 1908.

Executors and administrators — actions, not maintainable by temporary administrator—effect of appointment as executor.

A temporary administrator, having possession of stock found in a..safe deposit box belonging to the decedent, is without authority to maintain a suit in. equity for a decree that the decedent was the lawful owner of the stock and requiring a transfer thereof on the books of the corporation." -

*481By virtue of the statute (Code Civ. Proc. § 2672) a temporary administrator is merely the collector and conservator of the estate, and may only prosecute such actions as are necessary to reduce the assets to possession.

Whatever the authority of a temporary administrator to sue, it is *ipso facto*extinguished upon his appointment as executor, even though there be no formal revocation of the prior letters.

Appeal by the defendants, Frank Tousey, Publisher, a corporation, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the ■ clerk of the county of New York on the 22d day of June, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, determining the ownership of a certain share of stock.

*James M. Hunt,*for the appellants,

*Morgan J. O’Brien,*for the respondent.

Scott, J.:

The plaintiff sues in equity, as temporary administrator, etc., of Eosalie Touséy Hastings, deceased, and asks as between the estate of said deceased and the defendant Julia Howe, that said estate be adjudged to be the true and lawful owner of one share of stock in the defendant corporation, and as between himself and said corporation that it be required to transfer the said share of stock on its books to said estate.

The principal question of fact litigated in the case was as to the ownership of the share of stock which concededly was issued to the. defendant Julia Howe, and'was found after Eosalie Hastings’ death, in a safe deposit box belonging to her. The learned trial justice has found as a matter of fact that Julia Howe assigned the certificate for one share of stock to Eosalie Tousey Hastings on or about June 9, 1905, and that Eosalie Tousey Hastings at the time of her deatli was in possession of said certificate, and he has found as matter of law that Eosalie Tousey Hastings was at the time of her death the lawful owner and holder of said certificate, and that plaintiff is now the lawful owner and holder thereof. If it were neces: sary to the decision of this appeal we should find much difficulty in arriving at the conclusion,, from the evidence, that the share of stock in question was ever the property of Eosalie Tousey Has*482tings now' deceased. The only fact tending to support that conclusion is that after her death the certificate was found in her box indorsed in blank by the defendant Howe, who was a sister of the decedent.

The defendant Howe was not permitted, under proper objection, to testify as to the transactions between herself and her deceased sister resulting in the delivery tif the certificate to the latter, and the only competent witness gave evidence to show that the certificate was given by the defendant Howe to the decedent merely for safekeeping. It" is unnecessary,-however, to consider the question of fact, because the plaintiff, as temporary administrator, had no authority to maintain the action.- The general powers and duties of a temporary administrator are defined by section 2672 of the Code of‘Civil Procedure. He has “authority to take into his possession personal property; to secure and preserve it; and to collect dioses in action; and for either of these purposes he may maintain any action or special proceeding.” He is thus made merely a collector and conservator of the estate, and the only actions or proceedings he is authorized to prosecute, without special order of the surrogate, are those which may be'necessary to reduce to possession the assets of the estate. This action was not necessary for any such purpose. . The plaintiff already had the certificate of stock in his possession.. It would add nothing to his right of possession, or to -the estate’s right to the proportionate, interest in the corporation, to have the certificate transferred to plaintiff on the books of the corporation, even if it can be said that a temporary administrator takes any title to the personal property. It is not now necessary to consider whether, under any circumstances, a court of equity would, in the exercise of its wide jurisdiction, direct- that stock in a corporation be transferred-on the books to a temporary administrator. It is sufficient that no circumstances are shown requiring such a decree in the present case. Even if plaintiff as temporary administrator had original authority to commence this action, the court should not have proceeded to render judgment, for it appeared upon the trial and was conceded by both parties that plaintiff had then, been appointed executor of the estate.' ■

Whatever authority lie may have had. as temporary administrator was *ipso facto*extinguished upon his appointment as executor, and *483this without any formal revocation of his letters of temporary administration. Hence, whether he had or had not original authority to bring the action, he had no authority to continue it or capacity to take a decree. It follows that .the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred. -

Judgment reversed and new trial ordered, costs to appellant to abide event. ■