155 N.Y.S. 397 | N.Y. Sur. Ct. | 1915
In accordance with the directions contained in my decision in August, 1911, an order was entered appointing David B. Ogden, Esq., counsellor-at-law, a referee to take evidence upon the disputed question of decedent’s last domicile, and to report the same to this court with his opinion. A commission was issued to take the testimony of witnesses in Canada, and such testimony is now attached to the referee’s report. It appears that the learned referee took the testimony of witnesses who reside in this city and who were acquainted' with the testa
When this cause was on in this court before, I was under the impression that the Canadian will of the deceased was what is called “allograpbic,” but it is not so; the will was what is known as a nuncupative or “ notarial ” will. It was made in lower Canada in conformity with the law of the province of Quebec. Ancillary letters were, after the death of Elizabeth Connell, issued out of this court by direction of my predecessor. The regularity of these ancillary letters is now challenged, and an original probate is sought by petitioner on the ground that the last domicile of Elizabeth Connell was in our county and not in the province of Quebec, where she died, and on the further ground that’the Code in force did not authorize the issuance of
This proceeding was commenced in 1911, and its disposition, therefore, is to be governed hy the provisions of the Code as they existed prior to the amendment effected hy chapter 443 of the Laws of 1914. Section 2695 of that Code provided that where a will of personal property, made by a nonresident has been admitted to probate within the foreign country, where it was executed, “ or where the testator resided at the time of his death; the surrogate’s court * * * must, upon an application made as prescribed in this article * * * issue thereupon ancillary letters testamentary.” Section 2698 provided that upon the presentation of a petition for such letters “ the surrogate must ascertain, to his satisfaction, whether any creditors, or persons claiming to be creditors of the decedent, reside within the State,” and, if so, such creditors must he cited, unless they waive the issuance and service of citation. Section 2699 provided that upon the return of the citation, “ the surrogate must ascertain * * * the amount of debts due * * * from the decedent to residents of the State,” and as a condition of awarding letters the petitioner, or the person to whom the letters may be awarded, shall qualify by giving a bond for a sum not exceeding twice the amount of the debts due local creditors. Section 2696 provided that such ancillary letters shall be granted to the person “ entitled to the possession in the foreign country of the personal estate of such decedent.”
It is apparent, from these sections of the Code cited, that the only person entitled to ancillary letters in this state is the person entitled to the possession in the domiciliary state of the personal estate of the decedent. The person entitled to the personal property of the testatrix in the province of Quebec, where she -died and where her will was probated, was the executor designated in her will and who subsequently qualified in accordance with the laws of the province. Neither of the peti
It is, however, asserted' on behalf of the petitioner that the decree granting ancillary letters should be set aside because of defects in the authentication of the papers on which the ancillary letters were issued, in that the papers do not conform to section 2695, Code of Civil Procedure, and section 45, Decedent Estate Law, and, further, because they do not show that the will in question has been admitted to probate in the dominion of Canada. Row, the sections of the Code in relation to ancillary letters are designed to protect the interests of local creditors and not the interests of the next of kin living in this county. The latter should resort to the courts of the last domicile of testatrix for the protection of their interests or the enforcement of their rights. Its seems to me, therefore, that it is not necessary upon this application for the court to inquire'into the sufficiency of the authentication of the records upon which the ancillary letters were heretofore granted by this court. But I will not rest here, as there seems to me to be some misapprehension not only about the object of our law in regard to authentication of probates, but also a misapprehension regarding the foreign law of wills and probate.
A person, even if a resident of our county, may make a will
The testatrix here did not make a “ mystic ” will, but a will par acte public, sometimes called a “ notarial will.” In French law there are no proceedings precisely corresponding to our probate. A testamentary succession is said to be " ouverte ” by the death of the testatrix. .Then there must be a formal acceptation of the inheritance. All proceedings relating to the estate are conducted at the place of opening (" ouverture ") of the succession, which determines what court has jurisdiction of disputes. A French will itself is lodged with the appropriate notary, who is a public functionary, charged with the duty of keeping last testaments. A notary is an officer of the civil law. In England he obtains his faculty from the Court of Faculties. The judge of the Provincial Courts of Canterbury and York is now, I believe, ex o fficio, Master of Faculties. The acceptation of the inheritance in French law is a very important act, and when duly given is quite equivalent, I think, to a probate or publication of the will in the custody of the notary.
It would be somewhat provincial for us to suppose that in a foreign country there can be found institutions precisely similar to our own. While there may he no such thing in a foreign country as a probate, nevertheless there is always some act which
Decreed accordingly.