259 A.D. 728 | N.Y. App. Div. | 1940
Poceeding for the probate of a script as the will of a non-resident decedent in respect of personal property within the State. Resettled order of the Surrogate’s Court, Kings County, adjudging that it will accept jurisdiction to grant letters testamentary reversed on the law and the facts, with costs to the appellants, and the petition dismissed, with costs to the appellants, all costs payable out of the estate. To entertain jurisdiction was an improvident exercise of discretion under the circumstances herein. The surrogate properly held that the decedent’s domicile was in New Jersey, and that ruling is not made the subject of challenge. Exclusive of choses in action, there is no substantial tangible personal properly of the decedent within the State of New York. There is no adequate reason revealed why the usual rule in respect of intangibles should not be applied, which is that for administrative purposes they have their situs at the domicile of the owner. (Conflict of Laws, 15 C. J. S. 928, § 18, subd. e; 11 Am. Jur. 384, § 97.) Assuming, however, that there was personal property of the decedent in this State, in the exercise of sound discretion jurisdiction should have been declined under the circumstances disclosed herein. (Matter of Lamborn, 168 Misc. 504; affd., 255 App. Div. 755; affd., 280 N. Y. 504; Matter of Feeney, 158 Misc. 246; Surr. Ct. Act, § 45, subd. 2.) Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.
