1 Mills Surr. 398 | N.Y. Sur. Ct. | 1899
In this matter a trial was had before Mr. Surrogate Arnold, who, at the termination thereof, filed an opinion or memorandum to- the effect that the will should be admitted to probate. Upon the settlement of the decree, however, the contestant raised the question of the jurisdiction of this court to take any action in the premises, contending that the decedent was not a resident of this county, but of Piermont, in Rockland county. Of course, upon his residence here our jurisdiction must rest. Code Civ. Pro., § 24-76. And the mere fact that the parties consented to proceed with the trial without raising it does not confer such jurisdiction. Matter of Walker, 136 N. Y. 20, 29. The case has recently been resubmitted to me, principally to have this question passed upon, and, owing to the views hereinafter expressed, no other question raised need be considered. I could not, it would seem, enter a decision or decree on the opinion of Surrogate Arnold (Matter of McCue, 17 Wkly. Dig. 501, cited with apparent approval in Matter of Carey, 24 App. Div. 533), and, hence, was obliged to examine the evidence and form my own opinion thereon. It is conceded that prior to the spring of 1894 decedent was a resident of Piermont, aforesaid. In March of that year, however, he came to Few York city and took board and lodging with a Mrs. Cooke in Twenty-fifth street, where he remained until April, 1895, leaving there only for short trips to Piermont and elsewhere. It would seem, therefore, that he was physically present in Few York county a sufficient time to acquire a residence there, if that were his intention. In such case residence is, of course, a matter of intention and is a question of fact. Dupuy v.
Proceeding dismissed.