205 F. 683 | S.D.N.Y. | 1913
The complainant’s case is that one Rubens 'died domiciled in Paris, leaving a will of which the defendant Ickelheimer is the executor, and under which the other defendants are legatees. It is alleged that this will was invalid under the law of France, but proved in the Surrogate’s Court of the county of New York, and held valid as to property of the decedent within the state of New York.
The complainant alleges that he was appointed by the Civil Tribunal of the Seine, a.court having jurisdiction of the estates of persons dying in the city of Paris, “administrateur judiciaire,” or, as the order of appointment states, “administrateur provisoire,” authorizing him to take and reduce into possession the estate of the said Rubens. He brings this suit as such against the defendants, on the ground that they have unlawfully converted assets of the estate which ought to have ■gone to the persons entitled under the intestate law of France. The ground of objection is that certificates of stock and bonds of corporations other than corporations of the state of New York were distributed under the will, although they had no legal situs within the state.
Section 1836a of the Code of 'Civil Procedure, added by Laws 1911, c. 631, provides that a foreign administrator may sue in the courts of New York, if within 20 days after suit brought he shall file in the office of the clerk of the court wherein suit is brought a copy of the letters issued to him, authenticated as required by section 2704 of the Code of Civil Procedure, in default whereof all proceedings may be stayed until he does so. The defendants contend that this is a condition precedent to the complainant’s right to sue, and that in any event the words “may be stayed” are to be construed as “shall be stayed.” I think, on the other hand, that it is a condition subsequent, and that the section gives the court a discretion in the matter of staying the suit.
The complainant has filed a copy of the order of the Civil Tribunal of the Seine appointing him administrator, which has not been authenticated in the manner the statute provides. The defendants admit that
I think the complainant raises a serious question, and that unless he is allowed to litigate it in this suit the parties he represents will he remediless. The defendants say he may get ancillary letters; but I think the Surrogate’s Court here would immediately refer him to section 1836a, and, at all events, would be very unlikely to issue ancillary letters of administration of an estate which it has actually distributed under letters testamentary.
The complainant may have six weeks within which to file, if he can obtain it, such an authentication as is required by section 1836a. If not, the objection to his competency which is set up in the answer will be treated like a plea in abatement and tried out preliminarily^ in accordance with Supreme Court equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi) on proofs as to the nature and extent of the authority conferred upon him under the French law.
