94 N.J. Eq. 392 | N.J. Super. Ct. App. Div. | 1923
Jane E. Barney, at the time of her death, was domiciled at New Providence, Union county, this state. She died owning land and considerable personal property in New York county, New York. She also had land and personal property in this state, but comparatively of small value. It is said that nearly ninety-five per cent, of her property was in New York. Shortly before her death, in 1915, and while on a visit to New York, she executed in due form a purported last will and testament disposing of her entire estate and appointed Lewis V. Ennis, a legatee and sole residuary beneficiary, executor thereof. The will erroneously recites that
After this protracted and expensive litigation the executor. Ennis, joined by two legatees, evidently encouraged by what was said by our court of errors and appeals in the Chadwick Case, 80 N. J. Eq. 471, now applies for probate here because of the. decedent’s domicile in this state. Motion is made to dismiss the application on the ground that this court is without jurisdiction because the alleged will does. not accompany the petition for probate. The petitioners say they
The Hew York Code of Civil Procedure, section 2515, confers jurisdiction upon the surrogate’s courts to propound wills not only where the deceased is domiciled in that state but also—
“3. Where me decedent, not being a resident of the state, died without the state, leaving personal property within that county, and no other; or leaving personal property which has since his death come into that county, and no other, and remains unadministered.
"4. Where the decedent was not, at the time of his death, a resident of the state, and a petition for probate of Ms will, or for a grant of letters of administration, under subdivision second or third of this section, has not been filed in any surrogate’s court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fourth of this chapter, is situated within that county, and no other.”
Whatever may be thought of the wisdom of this jurisdictional endowment, it must be conceded that the investment was one of legislative power and policy. This view is sanctioned in the Chadwick Case, supra, where it was held that the orphans courts of this state and this court were without jurisdiction to probate foreign wills, because, as it was there pointed out, there was no inherent power, and none had been conferred by legislative grant. Mr. Justice Bergen, in the course of his opinion, observed that (at p. 473): “We think
I am of the opinion that the surrogate’s court of New York county had jurisdiction of the subject-matter—the probate, and of the parties, and that they are bound by the decree. 4 N. J. Dig. 7549 § 284. A recent case, substantially on all fours with this one, is In re Estate of Rosa E. Spang, deceased, decided by the orphans court of Allegheny county, Pennsylvania, and printed in full in the N. Y. Law Jour., November 29th, 1922. It may be published later in 51 or 52 Pennsylvania county court reports: The reasoning of the opinion is sound and applicable, and I feel justified in quoting from it at length:
“The petitioner asserts that the proceedings in New York could only concern the disposition of property under decedent’s will located in the State of New York; this conclusion cannot be sustained. The petitioners’ counsel confuses the construction of the will duly probated with the fact of probate itself; the proceeding in New York was on the fact of probate; an essential element to establish the fact was testamentary capacity; this was within the jurisdiction of
The petition will be dismissed.