3 N.Y.S. 145 | N.Y. Sup. Ct. | 1888
Lead Opinion
This is an appeal from an order of the surrogate of Richmond county, denying a motion of the appellant, upon his petition as the administrator with the will annexed of Gershen P. Jesup, late of San Francisco, deceased, for the issuance to the petitioner, Gilleran, forthwith, without the citation of any parties, ancillary letters of administration with the will annexed of Gershen P. Jesup, deceased, and for the revocation of ancillary letters testamentary issued by the surrogate of Richmond county on the 22d day of January, 1887, to Isaac Jesup and S. 0. Putnam, named as executors in the will of the deceased. On the 2d day of November, 1886, Gershen P. Jesup died in the state of California, leaving a last will and testament, disposing of all his real and personal property, which will was admitted to probate by the superior court of the city and county of San Francisco, in the state of California, on the 22d day of November, 1886. At the same time letters testamentary were issued by that court to Isaac Jesup and S. O. Putnam, who were named as executors in the will of said deceased. The decedent left real estaje and personal property situated in Richmond county in the state of New York; and on the 22d day of January, 1887, ancillary letters testamentary were issued by the surrogate of-Richmond county to Isaac Jesup and S. 0. Putnam, the executors so named in the will of the decedent, and such ancillary letters so issued to Jesup and Putnam are still unrevoked.' Subsequently to the issuance of such ancillary letters testamentary by the surrogate of Richmond county to Jesup and Putnam as executors, and on the 25th day of April, 1888, the original letters testamentary issued to them in November, 1886, by the superior court of the city and county of San Francisco, were by a judgment and decree of that court duly vacated and revoked. Aftér the revocation and nullification of the letters testamentary issued to Jesup and Putnam as executors by the California court, and on the 30tli day of April, 1888, letters of administration with the will annexed of Gershen P. Jesup, deceased, were issued by the court in California to James Gilleran, the petitioner and appellant herein, after he had qualified and filed a bond in the sum of $50,000, as required by law. Such letters of administration with the will annexed are still in full force and effect in the state of California. There are no debts due or claimed to be due from Gershen P. Jesup, deceased, to any resident of this state.
Upon the foregoing facts, which are substantially undisputed, which are recited in the order appealed from, the appellant claimed before the surrogate of Richmond county that he was entitled forthwith, and without the citation of any parties, under sections 2695 and 2697 of the Code of Civil Procedure, to a decree from the surrogate of Richmond county, granting to him ancillary letters of administration with the will annexed of Gershen P. Jesup, deceased, and revoking the prior ancillary letters testamentary, issued to the executors of the deceased, who had been removed, and whose original letters had been revoked by the California court in the manner described; and a motion was made by the appellant before the surrogate of Richmond county based on the petition
Concurrence Opinion
As a rule, notice should be given when a court is to be asked to make an order which injuriously affects the party against whom the relief is sought. This application is peculiar. The ancillary letters were granted on the faith of a California decree appointing executors upon a probate of a will in that state. Now the same court have removed the executor for cause, and no one questions the decree. Notice, if necessary, in ordinary cases, and even on this application, if any question was to be made of the facts, can do no good. The surrogate must respect the decree, and there can be no issue raised. The order should be reversed, witli costs and disbursements, and the petition granted.
Dissenting Opinion
I think the surrogate was right in allowing Putnam and Jesup an opportunity to be heard upon the application to revoke the letters heretofore issued to them. Many reasons may be suggested why such an opportunity should properly be granted. We see no objections to that course. If it be true that the surrogate had power to grant new letters ex parte, we think his course in declining so to do is to be commended. The disposition to exhaust the estate shown by the petition printed at page 98 of the appeal-book, where leave is asked to charge the estate with the expenses of the journey of two persons from San Francisco to New York, to make a demand that could as well be made by a resident attorney, was illy fitted to inspire confidence, and affords abundant reason why all persons interested in the estate should have full notic •, and a patient hearing, before the application should be granted.