100 A.D. 241 | N.Y. App. Div. | 1905
The judgment should be affirmed on so much of the opinion of the court below as holds that the plaintiffs have no standing in court to maintain, this action. But the judgment should not have been upon the merits. Judgment should be modified by striking out “upon the merits,” and as so modified affirmed, without costs.
Present — Van Brunt, P. J., Patterson, O’Brien, Hatch and. La ugh lin, JJ.
Judgment modified as stated in opinion and as so modified affirmed, without costs.
The following is the opinion of the court below:
After further consideration of the provisions of the Code of Civil Procedure, and a careful reading of the authorities cited upon the opposing briefs, I find myself confirmed in the opinion expressed upon the trial that the Code of Civil Procedure is intended to preserve and does consistently preserve a marked distinction between wills admitted to probate in this State and those which are permitted to be filed or recorded upon the production of an exemplified record of probate in a foreign State. Upon wills of the latter class the surrogate’s power is limited to the issue of ancillary letters testamentary, or ancillary letters of administration with the will annexed (§ 2695). The sections so confidently relied upon by plaintiffs (§§ 2642, 2643) apply by their -very terms to the case of a renunciation or refusal to qualify of an executor named in a will which has been admitted to probate. The will of Elizabeth B. Rice has not been admitted to probate in this State. The plaintiff’s petition asked that it be recorded in the surrogate’s office, and the decree of the surrogate merely directed that the “will of Elizabeth B. Rice, with the proofs and the decree
See Phillipps' Ev. (4th Am. ed. vol. 4).—[Rep.
32 U. S. Stat. at Large, 66, § 7.— [Rep.
32 U. S. Stat. at Large, 67, § 7.— [Rep.