128 N.Y.S. 477 | N.Y. Sur. Ct. | 1910
A verified petition has been presented to this court by Carrie M. Babcock, praying for letters of administration of the goods, chattels and credits of Ida B. Jones, her mother. It appears from the petition and accompanying affidavits that the maiden name of the petitioner’s mother was Ida B. Flandrau; that she married in 1877 one Rufus Jones and lived with him until in or about the year 1894, when she left him, taking with her the petitioner, who was the only child of the marriage, and then sixteen years of age; that she and her» husband resided at Thiells, in this county, when the separation took place; that for a short time thereafter she and the petitioner resided at Tomkins Cove, in this county, when she again departed, without informing the petitioner of her intention, and leaving her unprovided for; that the petitioner has not since seen or heard from her; that she had, at the time of her disappearance, a brother and sister, living in the same locality, and with whom she was on friendly terms, neither of whom has since seen or heard from her,, except that,' in or about the year 1900, the sister received a letter from a friend residing at South Norwalk, in the State of Connecticut, in which the writer stated that she had seen the petitioner’s mother in that city, but where and under what circumstances she did not disclose; that the petitioner’s father died in July, 1907, that her mother is entitled to personal property, to wit, the sum of $578.94 now on deposit with the county treasurer of Nassau county in this State.
A Surrogate’s Court is one of inferior and limited jurisdiction, and persons claiming under the decree of a surrogate must show affirmatively his authority to make it and the facts which give him jurisdiction. Matter of Hawley, 104 N. Y. 250-262; Matter of Law, 56 App. Div. 454-458.
The statute (Code Civ. Pro., § 2476) provides when and under what circumstances a Surrogate’s Court shall have and exercise jurisdiction to grant letters of administration upon the estate of a deceased person; and proof of the existence ■ of the jurisdictional facts is essential to the validity of the surrogate’s decree in this as in every other proceeding.
The statute further provides (Code Civ. Pro., § 2662) that “ A citation shall not be issued, and a decree shall not be made, where a citation is not necessary, until the petitioner presumptively proves, by affidavit or otherwise, to the satisfaction of the surrogate, the existence of all the jurisdictional facts, and particularly that the decedent left no will.”
The fact of the death of the person upon whose estate letters of administration are applied for is, of course, of the first importance as a test of jurisdiction. The petition and affidavits fail to establish to my satisfaction that the petitioner’s mother is dead. She was thirty-four years of age at the time of her disappearance and, so far as the petition and affidavits disclose, in good, bodily and mental health. She was seen, six years after her disappearance, in South Norwalk, in the State of Connecticut; but no effort whatever seems to have been made by the husband or daughter
My attention has been called to no case, nor have I been able to find one,' where a Surrogate’s Court, upon an appli
The petition and accompanying affidavit, upon which in that case the letters were issued, set forth facts which, as the surrogate decided, justified the finding that the person upon whose estate the letters were applied for was dead; in other words, there was evidence, aside from a continued absence of eight years, upon which the surrogate based his' finding of death. Moreover, the question of the validity of the letters in that case was not raised upon an appeal from the order granting them, or in a proceeding for their revocation, where the evidence upon which the decree was founded might have been reviewed, but in a collateral action.
The petition does not state, nor do the affidavits show, that the petitioner’s mother was a resident of this county at the time of her death; nor, indeed, do they bring the case within the purview of the statute. Code Civ. Pro., § 3476. If it be said that the mother’s domicile was that of her husband, he being a resident of this county until and at the time of his death, although they were living separate and apart from each other; nevertheless, if she survived him, she may have acquired a new domicile since his death occurred more than three years ago.
It should, also, be remarked that the personal property to which the petitioner’s mother is entitled is not within this county; but is on deposit with the treasurer of Nassau county.
There is a statement in the petition to the effect that she died without leaving any last will and testament; but it is of no value as evidence, since it, also, appears therefrom that the petitioner has neither seen nor received any communication from her mother during the past sixteen years.
The petitioner may be entitled, upon a proper application, to the appointment of a temporary administrator. Section 2670 of the Code provides that such an administrator may be appointed where a person, of whose estate the surrogate would have jurisdiction if he was shown to be dead, disappears or is missing, so that, after diligent search, his abode cannot be ascertained, and under circumstances which afford reasonable ground to believe, either that he is dead, or that he has become a lunatic, or that he has been secreted, confined or otherwise unlawfully made away with.
The office of a temporary administrator is to collect and preserve, rather than to distribute, as in case of administration-in-chief. It is not, therefore, to be expected, so far as the presumption of death is concerned, that the same certainly should be proven as in cases of general administration. The Code seems to recognize this distinction. The application must be denied.
Decreed accordingly.