125 Misc. 361 | N.Y. Sur. Ct. | 1925
This is a proceeding to compel the filing of an account by the ancillary executrix of the decedent’s estate. Various objections are urged against the granting of the relief sought. These objections resolve themselves into two questions:
(1) The respondent, the ancillary executrix, questions the jurisdiction of this court to compel an accounting, or in case such jurisdiction exists, prays that as a matter of discretion the surrogate refuse to exercise his jurisdiction and refuse to determine the merits of the claim and to direct payment thereof.
(2) The petitioner is the ancillary committee of an incompetent. He was originally appointed conservator by the courts of Illinois and subsequently was appointed ancillary committee by the Supreme Court of New York county. His status as a party interested is attacked on the ground that the Illinois courts lacked jurisdiction because the alleged incompetent was a non-resident of Illinois at the time of the adjudication of incompetency and the appointment of a conservator.
The claim of the petitioner is in the nature of a suit for an accounting and is based in general upon the following allegations: The decedent in 1907 came into possession of certain securities belonging to his brother (the incompetent represented by the petitioner here). The decedent is alleged to have retained, without legal authority, a large part of the annual income due his brother. It is also claimed that by his misconduct the capital of the fund was diminished with resulting loss to his incompetent brother’s estate.
I have determined in this matter that the merits of this claim cannot be tried in this court. I shall, however, order that an intermediate account be filed and that the balance of the funds in the hands of the ancillary executrix must be remitted to herself as executrix under the original letters issued in Australia to be administered in the court of original jurisdiction. This determi
No reason is set forth in the papers why a trial and determination of the claim of the petitioner should be had in this court. The parties are all non-residents. No part of the claim arose as a cause of action in this State. The petitioner and the incompetent now reside in Illinois. The ancillary executrix fives in Oklahoma. The alleged liability in favor of the incompetent and against the decedent arose out of an estate administered in Colorado. The decedent and his brother, Philip (the incompetent), resided in Australia for fifteen years, during which it is claimed that the decedent failed to pay over the income of the brother’s property to him. The decedent died a resident of Australia. The activity of the parties and their present residence cover two continents, but none of the parties is a resident of the State of New York. Necessarily most of the witnesses required to support or refute the claim reside in Australia, or in any event, outside of our State. Furthermore, the law as to the exact status of the parties, whether the decedent acted as trustee, agent or in some other capacity for his brother, the running of the Statute of Limitations and any other disputed question would have to be tested by the law of Australia. The mere fact that some of the securities of decedent’s estate in a custodian account in a New York city trust company belonged to the incompetent does not justify the exercise of our jurisdiction. These securities have already been turned over to the committee. The transactions between the trust company and the decedent, in so far as they affected the claim, are the subject of documentary proof and are easily procurable by the courts of Australia by deposition. None of the grounds which justify the exercise of jurisdiction in the hearing of a claim by the Surrogate’s Court of New York county, or a direction of payment out of the assets'
Even in actions at law or equity where the parties do not reside in this State, our courts are not obliged to entertain jurisdiction. As was stated by Judge Cardozo in Loucks v. Standard Oil Company (224 N. Y. 99, 110): “ Sometimes, we refuse to act where all the parties are non-residents (Burdick v. Freeman, 120 N. Y. 420; English v. N. Y., N. H. & H. R. R. Co., 161 App. Div. 831).” 'Under the authorities final distribution in this jurisdiction is only ordered where convenience would be served, or where there
Submit decree, therefore, directing the filing of an intermediate account within twenty days. The decree to be entered thereon must contain a provision directing the transmissal of the assets to the executrix to be administered in the Supreme Court in the State of Victoria, Australia.