130 Misc. 499 | N.Y. Sur. Ct. | 1927
In this contested probate proceeding a preliminary issue arises as to the residence of the decedent. The proponent of the will alleges that the decedent was a resident of New York county at the time of his death. The contestant, who is the widow, claims that the decedent was a resident of St. Louis, Mo. The further question is presented as to whether, if the decedent resided in Missouri, the Surrogate’s Court of New York county shall continue jurisdiction of the proceeding because of the fact that the testator left property within New York county. I hold that the testator, at the time of his death, was a resident of St. Louis, Mo. I hold further, as a matter of comity, that the probate proceeding here should be dismissed and that all further proceedings for the probate of the will be had in the courts of the testator’s domicile.
It appears from the evidence that Charles L. Leonori was born in St. Louis, Mo.; that he lived there up to thirty years before his death; that he lived at various times in Chicago, 111., and Buffalo, N. Y.; that he ultimately resided for about twenty years in New York county, where he was engaged in the hotel business as the proprietor of the Leonori Hotel. At the time of his death
The abandonment of his New York domicile has been conclusively established before me. In a letter written from St. Louis by him to his attorney in New York city, dated January 16, 1924, containing instructions with regard to adjustment of the marital differences between him and his wife, he stated: “As to my returning, I never expect to.” He likewise directed that all his mail be forwarded to his new home in St. Louis. That letter was clearly not privileged, and was competent because of his instructions to this attorney to communicate the contents to a third person. In addition to his written declaration, there are numerous other elements of proof in the record evidencing his acts and intention to make his permanent home in Missouri. I hold, therefore, that the contestant has sustained the burden of proof cast upon her to establish a change of domicile. (Matter of Newcomb, 192 N. Y. 238; United States Trust Co. of New York v. Hart, 150 App. Div. 413; mod. and affd,, 208 N. Y. 617.) We have, therefore, both elements, factum and animus, of the establishment of residence, first, in the acts and conduct of the testator; and, secondly, of his intention to relinquish his New York residence. (Matter of Harkness, 183 App. Div. 396; Dupuy v. Wurtz, 53 N. Y. 556.)
Upon the second question presented, I hold as a matter of discretion that the Surrogate’s Court of New York county should not continue jurisdiction of the probate proceeding because of the existence of property left by the decedent within New York county. A will of the testator, dated prior to the date of the instrument offered here, has been admitted to probate in St. Louis. In view of my holding that the decedent was a resident of Missouri, it would appear that for reasons of comity, and to avoid the possibility of conflicting determinations in separate jurisdictions, all further proceedings involving the validity of the later testamentary instrument should be had in the proper Missouri tribunal, and not in this court.
While we may, in certain cases, permit original probate of the will of a non-resident in this State, where the bas's of our jurisdiction exists, no reason for such procedure exists where the courts of the
Submit decree on notice accordingly.