194 A.D. 334 | N.Y. App. Div. | 1920
Harriet A. Curtis died on January 25, 1919, leaving a last will and testament, naming as executors therein a resident of Scranton, Penn., and a resident of Williamsport, Penn. Harriet Louisa Curtis, her daughter, died on January 10, 1919. Harriet A. Curtis left an estate of the value of about $900,000, and Harriet Louisa Curtis left an estate of upwards of $70,000. Harriet Louisa Curtis also left a will appointing as executors the same persons named in the will of Harriet A. Curtis, both residents of the State of Pennsylvania. Upon the petition of Sylvia Curtis White, verified February 8, 1919, Harold E. Lippincott was appointed by the surrogate of New York county temporary administrator of the estate of Harriet A. Curtis. Upon a similar petition of Sylvia Curtis White, dated upon the same day, Harold E. Lippincott was appointed by the same court temporary administrator of the estate of Harriet Louisa Curtis. Sylvia Curtis White was a granddaughter of Harriet A. Curtis, being a daughter of a son of Harriet A. Curtis, now deceased. She was, therefore, also a niece of Harriet Louisa Curtis. She was the sole next of kin residing in New York State and was, therefore, entitled to make a petition for the appointment of a temporary administrator. No citations were issued because there were no other next of kin residing in the State of New York and no will had been filed. The petition for the appointment of the temporary administrator of Harriet A. Curtis alleges the production of a paper purporting to be the will of said Harriet A. Curtis, but alleges that such paper was not the will of Harriet A. Curtis, for the reason that at the time of the execution of said paper the said Harriet A. Curtis was not of sound and disposing mind. Similar allegations were included in the petition for the appointment of the temporary administrator upon the estate of Harriet Louisa Curtis. There are no allegations in either of these petitions presented, one within eleven days after the death of Harriet A. Curtis, and the other within twenty-nine days after the death of
One of the executors, James E. Burr, of Scranton, Penn., who is executor under both of said wills, thereupon made separate application to the surrogate for the revocation of the said letters of administration, and based the applications mainly upon the lack of jurisdiction in the surrogate of the county of New York, by reason of the residence of the said decedents at the time of their death in the county of Orange. The facts as appear from the record are substantially as follows: Sylvester J. Curtis was the husband of Harriet A. Curtis. At his death he left his widow, Harriet A. Curtis, one son, Thomas E. H. Curtis, the father of Sylvia _ Curtis White, and one daughter, Harriet Louisa Curtis. Sylvester Curtis died on the 25th day of September, 1899. Prior to his death he, with his widow and daughter, had been residents of the city of New York. At the time of his death the son was a resident of New Jersey. The will of Sylvester J. Curtis was probated in the county of Orange upon the petition of Thomas E. H. Curtis and Harriet Augusta Curtis. In that petition it was stated that the said deceased was immediately previous to his death an inhabitant of the county of Orange in the State of New York. The daughter, Harriet Louisa Curtis, was an invalid, needing and receiving at all times, up to the time of her death, the immediate care and supervision of her mother, Harriet A. Curtis. She was incompetent to
“ Second. That from and after the death of her said husband, the said Harriet Augusta Curtis continued to reside in said City and State of New York for a period of about two years, with the intention of continuing her residence in that State.
“ Third. That during the said period of two years from and after the death of her said husband, the said Harriet Augusta Curtis did not change her residence to the State of New Jersey, nor have any intention to abandon the City of New York, in the State of New York, as her residence, and acquire a residence in the State of New Jersey.
It will thus be seen that while the referee holds that in 1900 at the date of the execution of said trust deed, Harriet A. Curtis and her daughter were residents of the city and State of New York, the fourth finding of fact is simply that for a year prior to the commencement of this action Harriet A. Curtis has been a resident of the State of New York. Apparently the referee was unwilling to find even from the testimony there given, in which action many of the facts here appearing did not appear, that for a year prior to the commencement of the action Harriet A. Curtis had been a resident of the city and State of New York as was found in the second and third findings of fact. She was then eighty-six years of age. She came down to New York to testify and stopped at the Waldorf Hotel. She was there registered as from Middletown, N. Y. There is some evidence that her name and residence upon the register were not in her handwriting. But the natural inference is that if written by a clerk of the hotel, the place of her residence was placed there by her direction. She was so feeble at the time of her testimony that her testimony was taken in her rooms at the Waldorf Hotel. She there testified that she was brought up and married in New York city, that she was a resident of New York city in 1900, and “ she clung to New York city as her home.” In that testimony she speaks of Middletown as her home and then corrects it by saying that she always regarded New York as her home. She nowhere swears that she ever intended to return to New York, there to reside, and from that testimony itself, as well as from the establishment of a home in Middle-town, the inference seems irresistible that she intended to stay in Middletown, as her home for the rest of her fife, and there to be buried. It is upon this testimony that she always clung to New York as her home that the learned referee concluded that New York county was her home at the time of her death. Surrogate Fowler in affirming the conclusion of the referee indicates that he had doubt as to whether the evidence establishes New York city as her home at the time of her death, but concluded: “While this undoubtedly is a close case,
From the evidence of Harriet Louisa Curtis in the proceeding referred to, and from the. practical concession of counsel, her residence was the same as that of her mother, and the determination of her residence in January, 1919, must be governed by the same facts as determine the residence of her mother at that timé.
In the opinion of Surrogate Fowler reference is made to the distinction between domicile and residence, and it is there suggested that the rule as to the intention of the parties may not have the same weight in determining the question of residence in different counties in the same State, and between different States or different countries. And this may well be so considered, in view of the fact that where the question arises as between domicile or residence in different States or different countries, different laws and different statutes may govern the administration of an estate, while as between residence in different counties within the same State, the same rule of law must govern administration. Furthermore, the question arising as to the right of administration within different counties within the same State rests largely upon the question of convenience of administration, and if any force be given to this consideration, the convenience of administration will be much greater in the county of Orange, where all the property of both decedents is situated.
My conclusion is that upon the evidence it is shown that both Harriet A. Curtis and Harriet Louisa Curtis, at the time of their deaths, were residents of the city of Middletown, in the county of Orange, and that the surrogate of New York county was without jurisdiction to appoint temporary administrators of their estates, and the decree of the surrogate refusing to vacate the appointment of temporary administrators should be reversed, with costs, and application for revocation of said letters should be granted.
Clarke, P. J., Laughlin, Page and Merrell, JJ., concur.
Decrees reversed, with costs, and application for revocation of letters granted. Settle orders on notice.