89 N.Y.S. 37 | N.Y. App. Div. | 1904
On the 5th day of March, 1901, Gottlieb Gennert died in the State of New Jersey, of which he then was and for many years prior thereto had been a resident. He left a last will and testament which was admitted to probate by the surrogate of the county of Hudson in the State of New Jersey on the 29th day of March, 1901, and letters testamentary issued to the executors therein named, who have since and now are acting as such.
On the 29th day of December, 1903, one Wuestner, then a resident of the State of New Jersey, presented a petition to the Surrogate’s Court of the county of New York praying for a decree awarding letters of administration, with the will annexed, to him or to such other person or persons as might have prior right thereto, and that a citation be issued to persons having a prior right, including the public administrator of the county of New York, to show cause why such a decree should not be made. A citation was issued to the necessary parties, on the return of which the executors named in the will appeared and objected to the granting of such letters upon the ground, among others, that it appeared from the petition and answer thereto that the surrogate of the county of New York did not have jurisdiction to grant the same. The objection was overruled and a decree entered that unless the executors named in the will or some one of them, within twenty days from the entry of the decree, took out ancillary letters testamentary upon the estate of the deceased that then and in that event the application of the petitioner was granted and ancillary letters of administration, with the will annexed, should thereupon issue to him or to such other suitable and proper person as the surrogate might then designate.
It is unnecessary at this time to determine whether the Surrogate’s Court had jurisdiction to issue ancillary letters or letters of administration with the will annexed, because if it did, such jurisdiction ought not, upon the facts presented, to have been exercised. The petitioner, as well as the executors, reside in New Jersey; all of the personal property of the decedent is in that State, and it is conceded that the estate is solvent. Under such circumstances the petitioner should resort to the -courts of that State to enforce his claim..
I am of the opinion that the practice, which prevails in the Supreme Court as to its exercising jurisdiction in certain cases between non-residents should prevail in the Surrogate’s Court where claims are made against an estate, all the personal property of which is in another State, in which the claimant as well as the executors reside. It is true there is real estate in the State of New York, but this cannot be reached for the payment of debts unless the personal property is insufficient for that purpose. The chief object of the provisions of the Code of Civil Procedure as to ancillary letters of administration of estates is to preserve and protect the claims of
The sections of the Code of Civil Procedure (§§ 2643, 2695) cited in the memorandum of the surrogate as authority for granting the letters have no application and do not give a surrogate jurisdiction to grant ancillary letters of administration upon the petition of a claimant of an estate situated as this one is. Section 2643 provides that “ if no person is named as executor in the will or selected by virtue of a power, contained therein, or if at any time by reason of death, incompetency adjudged by the surrogate, renunciation * * '* or revocation of letters, there is no executor or administrator with the will annexed qualified to act, the surrogate must, upon the application of a creditor of the decedent or a person interested in
It follows, therefore, that the decree'appealed from , must be reversed, with costs, and the application of the petitioner denied, with costs.
Van Brunt, P. J., O’Brien, Hatch and Laughlin, JJ., concurred.
Decree reversed, with costs, and application of petitioner denied, with costs,