In re O'Brien, 2 Mills Surr. 183

In re O'Brien

2 Mills Surr. 183 | N.Y. Sur. Ct. | 1901

Thomas, S.

— The proceeding is for discovery under sections 2706 to 2710 of tbe Oode of Civil Procedure. Tbe petitioner is a temporary administrator appointed pending a contest concerning tbe probate of alleged wills. By bis petition be alleges, among other things, that tbe respondent was one of tbe most intimate friends of tbe decedent and is in possession of much information respecting tbe character, amount and whereabouts of tbe property of tbe decedent, and is in possession of a large amount of personal property and money which belonged to tbe decedent at tbe time of bis death, and has refused to deliver tbe said personal property and money to tbe petitioner; that tbe decedent was a resident of tbe county and State of New York, and that tbe respondent claims to be a temporary administrator of tbe goods, chattels and credits of tbe said decedent’ in and for tbe State of Texas, claiming to have been appointed under tbe 'authority of some court in tbe State of Texas, which appointment is charged to be void and of no effect. Tbe respondent files an answer which be insists is adequate to require a dismissal of tbe proceeding, and tbe force and effect of this answer is now to' be considered. By this answer be alleges, in substance, that be, personally, has in bis possession no personal property or money which belonged to tbe decedent at tbe time of bis death, but admits that “ there is money deposited to bis credit in certain banks in Texas, and that there is other personal property in Texas over which be, as temporary administrator, has control and which came into bis possession as such temporary administrator and for which be is accountable to the court which appointed him.” He alleges that “ as to all such property in tbe State of Texas be is entitled to tbe possession thereof by virtue of a special title therein as temporary administrator of the estate of William M. Rice, under tbe appointment duly made 'by a court in Texas having jurisdiction on tbe 28th day of September, 1900.” He denies that be withholds any property from the petitioner except such property as is in *185the State of Texas. The provision of law as to defeating a proceeding to compel an examination to discover assets of a decedent is as follows: “ If the person so cited interpose a written answer, duly verified, that he is the owner of said property, or entitled to the possession thereof, by virtue of a lien thereon, or special property therein the1 surrogate must dismiss the proceedings as to such property so- claimed.” Code Civ. Pro., § 2709. It is not sufficient to prevent the examination to deny possession of property specifically described in the petition or of property generally belonging to the estate of the decedent. Estate of Hastings, 6 Dem. 423; Public Admr. v. Elias, 4 id. 139; Estate of Seaman, 16 Wkly. Dig. 118. If a dismissal is had it is only “ as to the property so claimed,” and unless the admission of possession and claim of title by the respondent covers all of the assets which, by the terms of the petition are sought to be discovered, the investigation must proceed as to the property as to which possession is denied. Public Admr. v. Elias, supra; Matter of Peyser, 25 Misc. Rep. 70. The examination is for discovery, and a person may be examined who has information which he withholds, but who is not charged with having possession of any of the assets of the decedent. Code Civ. Pro., § 2707; Matter of Richardson, 31 Misc. Rep. 666. And if, on the examination of a person having possession of assets formerly of the decedent, it appears that the respondent makes a claim of title not clearly untenable, the parties must be remitted to an action. Matter of Curry, 25 Hun, 321. These principles require a denial of the motion to dismiss the' proceeding in its entirety. As to property not within the State of Texas and not covered by the claim of the respondent as temporary administrator of Texas assets, appointed by a Texas court, the sole effect of the answer is to -deny possession. It is plain from the answer itself that the respondent has knowledge or information, and this he must impart. As to the property claimed by the respondent as temporary administrator, his an*186swer does not clearly state the nature and extent of bis special title, and describe witb fullness and accuracy the propeity -as to which a dismissal of the proceeding could be ordered, and this is indispensable in order to justify even a p'artial dismissal of the proceeding. Matter of Motz, 5 N. Y. St. Repr. 343; Metropolitan Trust Co. v. Rogers, 1 Dem. 365; Delamater v. McCaskie, 4 id. 553. It is admitted that the decedent was a resident of this State and county. The administration in Texas must therefore be ancillary to the administration here, and for the purpose only of protecting Texas creditors. What is the amount of the Texas debts which measure the rights of the ancillary administrator? What are the assets, which, by the order now sought, are to. be excepted from the operation of the present proceeding by virtue of the respondent’s special title in them? Do those assets have a situs in Texas, or are they lawfully assets in the domicile of the decedent? The nature of the court by the authority of which the respondent claims to act is not divulged. It is true that the word “ duly ” may sometimes when used in a pleading stand for allegations concerning regularity of procedure, but the name of a, court said to- have exercised an important .jurisdiction is not one of the details thus covered; and when the question is as to- the extent of an inquiry to be made, it cannot preclude this court from inquiring as to the source of an authority which is to keep an indefinite, and possibly a very large, portion of the estate from the possession of its proper custodian. It may very well he that, on a full statement of the facts, the claim of the respondent to retain a substantial part of the assets of this estate, under the Texas law and for distribution by a Texas court, will not be interfered with in this proceeding; but the right of our administrator to know the facts, so as to make his inventory and to enable him to assert his claims in other courts, is entirely a different matter. The application to dismiss the proceeding is denied.

Application denied.