145 N.Y.S. 665 | N.Y. Sur. Ct. | 1914
This is a proceeding for letters testamentary and also for ancillary letters. In the former proceeding for probate of several testamentary papers made in his lifetime by the deceased, Mr. Constant Mayer (144 N. Y. Supp. 438), and now established and approved by a former decree of this court, it was intimated by the surrogate that the application for letters testamentary should be reserved until after the contentious proceedings for probate was finally decided in this court. It was also stated in the opinion (144 N. Y. Supp. 438) that in a proceeding where title to probate was in controversy it was premature to move for letters before the script entitled to probate was first adjudicated, and that in such a condition of the probate business the application for letters testamentary had become a separate proceeding. I shall now justify that ruling by the citation of authority.
Prior to the Revised Statutes it will be remembered that the probation and approbation of testaments, commonly called the “ probate,” in the courts of the surrogates of New York conformed to the practice in the Ecclesiastical Courts known to the common law. Only in contested matters did the surrogate pronounce
The former probate practice in New York was substantially the same as at common law. Surrogate Kirkland, of this State, before the Revised Statutes of 1830, indicated the common practice in this state. “ The meaning of probate of a will,” he says, “ is generally understood to be the proving of the will, making a copy of the same, indorsing the proof on the copy, and granting letters testamentary under the seal of the surrogate and annexed to the copy of the will (Kirkland’s Pr., 44).” This" is confirmed by Judge Dayton in his most admirable work on the
After the Revised Statutes, an application for letters in a contested probate became a separate proceeding in New York. . Judge Dayton, in substance, states that after the Revised Statutes the issuance of letters testamentary became distinct from the proceeding to probate (2 R. S. 69; Dayton Surrogates, 212). This remains measurably true in more modern practice. Code Civ. Pro., § 2636. But although the application for letters is become a separate proceeding ex necessitate rei in a contested probate only, yet no further citation need issue on such application because of the exception specified in section 2516 of the Code of Civil Procedure. It may be noticed in passing that the modern probate practice of England has developed to the same point from like inherent jural necessities. Matter of Goods of Tucker, 2 S. & T. 585, 586. So much in justification of my prior opinion that the application for letters testamentary in a probate cause of this character is a separate proceeding or a separate “ matter of business,” for in courts of this character such secondary applications were formerly styled with greater propriety matters of business rather than causes.
I now come to the next point in this proceeding: There are here two testaments, each specifying a different executor. Has the surrogate an inherent jurisdiction to look into the wills already admitted to probate and construe them in order to determine the better title to the office of an executor? On this point I am not in doubt. The general grant of jurisdiction to issue letters testamentary (Code Civ. Pro., § 2472)
This brings me to the gist of the matter now before me: The main facts regarding the situation of the wills are fairly indicated in my former opinion in the proceeding for probate. 144 N. Y. Supp. 438. The so-called American will and also the so-called French testament, having both been probated in this jurisdiction, application is now made by the three executors named in the American will for the issuance to them of letters testamentary. An application is also made on behalf of the French administrator, Monsieur Desbleumortiers, for the issuance to him of ancillary letters of administration. As it is contended by the latter that the appointment of the executors in the American will was revoked by the French will that question will now be considered.
The petition of M. Desbleumortiers alleges that he is a resident of Paris and that on the 11th day of July, 1911, letters of administration were duly issued to Mm upon the estate of the late Mr. Constant Mayer, who died a resident of Paris, by a court of competent jurisdiction, and that an order to that effect was made by said court authorizing and directing M. Desbleumortiers to take possession of the property of decedent within the United States as well as in France. The petition also avers that Mr. Mayer had not been in, nor resided within, the state
Such parts of the “American will ” admitted to probate as are necessary to the determination of the question at issue are as follows:
“ This is my last will and testament; it annuls and renders void all former wills and testaments which I may heretofore have made.
“ I give and bequeath to my cousin Gertrude, the wife of Dr. Henry Levy, residing at No. 1030 Grace street, in the City of Richmond, Va., the sum of six thousand dollars ($6,000).
“ I give and bequeath to my cousin Emma, the wife of Mr. Arnold W. Brunner, architect, residing at No. 1748 Broadway, in the-City of New York, the sum of four thousand dollars ($4,000).
‘ ‘ I direct my executors to divide the rest, residue and remainder of my estate in four equal parts, and I give and bequeath one of such parts:
“1. To the Mt. Sinai Hospital in New York.
“2. To the Hebrew Orphan Asylum in New York.
“3. To the Home for Aged and Infirm Hebrews in New York,
“ I appoint Mr. Fred Gotthold, 165 West Fifty-eighth street, in the City of New York; Mr. Arnold W. Brunner, architect, 1748 Broadway, in the City of New York, and Prof. Bichard Gottheil, of the Columbia University, in the City "of New York, as the executors of this my last will and testament, and I request that they should not be called upon to give security for its faithful execution.
“ In witness whereof I have hereunto set my hand and seal, this fifteenth day of July, 1908.”
The pertinent portions of the “ French will,” also admitted to probate, are as follows:
“ I appoint Mr. Eugene Cuisenier my testamentary executor, with right of possession (“ avec saisine ”) and power to collect alone, upon his mere receipt, all sums and claims which I may have at my death, notably all sums on deposit with Messrs. Morgan, Harjes & Company, bankers at Paris, for the purpose of carrying out the dispository provisions (dispositions) that I am about to make.
“ The sum of one thousand francs in two bank notes of five hundred francs will be found in an envelope in the drawer of the little desk which is in the parlor; this sum is intended to pay for my funeral expenses. * * * ”
Then follow some bequests of money and of specified articles of personal property.
“ I desire that all my household effects other than the articles of which I have already disposed be sent to the official auction rooms, and that the proceeds thereof be added to the sum which shall remain belonging to my estate, and that the whole be delivered to the Grand Babbi of Paris, to be distributed by his
“ I maintain all the other dispository provisions (dispositions) which I may have made by another will.
“ Executed at Paris at my domicile, 2 Avenue Elisfees Reelus, on the first day of February, one thousand nine hundred and eleven.”
Mr. Mayer, the testator, died May 11, 1911. His “French will” was executed on February 1, 1911. He then had .11,905 francs in France and other personal property, and $80,000 in this state, which composed the whole of his estate. By the “ French will ” he disposed of 4,900 francs for the payment of his funeral expenses and certain money legacies, and gave certain specific articles, including part of the household effects, to certain designated legatees, and the proceeds of the sale of the rest of his household effects, directed by him, together with the “ sum which shall remain belonging to my estate-,” he gave to the Grand Rabbi of Paris for the purposes mentioned. Most of the articles specified were located in France, but whether the others were located there or elsewhere does not appear. These, however, were- of such a character that it might fairly be presumed that they also were located in France, which was the domicile and place of residence of testator and where he maintained his household. The French will, while giving no power over any of the property disposed of by the American will, by its reference to the dis-positive provisions in the latter did in a sense make the “American will” a part of the “ French will ”' and the latter a part of the American will for the purpose of their probate in order to effectually carry out here testator’s testamentary purpose. Besides, the probate of both wills was necessary in order to enable the parties to litigate their respective, claims
Before proceeding to consider the matter at issue, let me say that the word £ ‘ dispository ’ ’ in my former decree was used in the sense of dispositive. See Murray’s New English Dict., vol. 3, pt. 1, p. 494. I will now refer to some principles of law relevant to the case: In these days of extended international intercourse and investments, it has become very common for a person dying seized or possessed of property in different countries to make separate wills, each having more or less exclusive reference to the testator’s property in a particular country.. In that event the courts of the country of the testator’s domicile have no jurisdiction to probate the foreign will unless such foreign will is dependent in some way on the domestic will. Nor has the foreign court jurisdiction to probate the will of the testator’s domicile unless such will is related to or depends on the foreign will. Jauncy v. Sealey, A. D. 1686, 1 Vern. 397; Matter of Goods of Coode, 1867, 1 P. & D. 449; Attorney-General v. Dimond, 1831,1 Cr. & J. 356; Matter of Mayer, 144 N. Y. Supp. 439. The case cited from Vernon in the year 1686 is binding here.
It is also established by law that separate sets of executors may be appointed for the different countries in which a testator may have property. Cf. Mortimer, Probate Law, 13; Dicey, Conf. Laws, 658; Attorney-
I feel compelled to advert to a circumstance having no legal relation, but concerned with the justice of my conclusion. It would, perhaps, seem that the appointment of an executor in the French testament must necessarily have had reference to the law of New York, as it is sometimes assumed by our lawyers, that in countries where the modern Boman Law prevails or is a criterion, there is no such office as that of an executor of a testament. There is no proof now before me of the present French law on that point. I cannot assume, therefore, in this cause that the office of. an executor is either known or unknown in France.
But ignoring wholly this last consideration, as I do, it seems clear from the provisions of the French will of Mr. Mayer that the testator intended to confine the powers of the person selected to have possession and collect all sums and .claims which he had at his death in France to the collection of moneys in France for the payment of money legacies given by his French
The application for ancillary letters must be denied, and letters testamentary will issue to the executors named in the American will, which has been admitted to probate.
Decreed accordingly.