In re the Application for Letters of Administration on the Goods, Chattels & Credits Left Unadministered of Ferrigan

92 A.D. 376 | N.Y. App. Div. | 1904

McLaughlin, J.:

On the 15th of October, 1893, Rose Ferrigan, a resident of the-city of New York, having personal property therein, died leaving-her surviving a sister, Margaret Kehun, her only next of kin, who-resided at Dundalk, Ireland. Upon the death of Mrs. Ferrigan, John Flynn, of Providence, R. L, and Mrs. Jennie Tinney, of New Yorb, were appointed her administrators. They qualified and acted, as such until the 15th of April 1898, when Mrs. Tinney was-removed and thereafter Flynn acted as sole administrator until his-death, which occurred on the 7th of July, 1902, the Ferrigan estate-not then having been fully administered. Mrs. Kehun died on the-24th of September, 1902, leaving her surviving as her next of kin an only son, William Henry Kehun, who resides at Liverpool, England. Shortly prior to her death she assigned — apparently upon the supposition that her son was dead, as appeal’s from statements-in the assignment — all of her interest in the Ferguson estate to, A. Nicholas Sheridan, then and ever since a resident of Dundalk, Ireland. Subsequent to the death of Flynn, Sheridan, through an attorney of this court, filed a petition in the Surrogate’s Court for letters of administration de bonis non of the goods, chattels, etc., of Rose Ferrigan, deceased. Upon the return of the citation issued upon the petition the application of Sheridan was opposed by the-Lawyers’ Surety Company, the surety upon Flynn’s bond, upon the ground that the petition of Sheridan was insufficient to give the court jurisdiction to appoint an administrator. The opposition of the surety company was ineffectual, and an order was entered . appointing (the public administrator having refused to act) the attorney who filed the petition for Sheridan, and the surety company has appealed.

I am of the opinion that the order should be reversed. The Surrogate’s Court is a court of limited jurisdiction. It has such powers as the statute gives it and no more. (See Code Civ. Proc. § 2472 at seq)r: Therefore, unless there be some -statutory provision by which a non-resident alien can obtain letters for himself or another, upon a petition filed by him for that purpose,-there was no authority in the court to entertain the petition filed. We have been unable to find any such authority in’the .statute; on the contrary, section 2661 of the Code of Civil Procedure expressly provides .that lettei’s of administration shall not he granted to' a person not a citizen of the United States unless he is a resident of the State.. 'Sheridan is not a citizen of the-United States, nor is líe a resident of the State of Hew York; on the contrary, the fact is not disputed that at the time the petition was. filed lie was a. resident of Dundalk, Ireland. He could not,, therefore, obtain letters for himself, and .he could not, authorize any one to do for him what lie is precluded from, doing. (Sutton v. Public Administrator, 4 Denn. 33.) Hor is there force in the suggestion that lie could, under section 2662 of the Code 'of Civil -Procedure-, present to- the Surrogate’s Court a petition asking for letters, inasmuch as he was “ contingently ” entitled to letters himself. But he is not “ contingently ” entitled to letters. The word “ contingently ” as used in this section means aperson- to whom, at the time the petition is- filed, letters would issue if persons entitled thereto in priority under section 2660-did not take-. Here, 'when the petition- was filed Sheridan could not obtain letters, nor could he file a petition for letters because- lie' was not them ‘‘'contingently” entitled thereto, and lie could not he, not being a citizen of the. Hnited States^ until he became- a resident of this State.

If we are. right, in this conclusion then it necessarily follows that the Surrogate’s Court did not have jurisdiction to entertain the application of Sheridan, and for that reaason the order appealed from; must be reversed and the proceeding dismissed. The public administrator of the county of Hew York is either absolutely or contingently entitled to letters of administration' on this estate (Code Civ. Proc.. 2.660), and he can, therefore (Id. § 2662), apply for the same, and if any reason'exists why letters should not issue to him, that fact being made to appear, some other suitable person can be appointed.

The order appealed from, therefore, is reversed, with ten dollars costs and' disbursements:- against the respondent Sheridan-, and the proceeding instituted upon Ilis1 petition dismissed, with costs in the court below.

Van Brunt,. P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements against the respondent Sheridan, and the proceeding instituted on bis petition dismissed, with costs in the court below.