Milner v. Hoag

182 A.D. 524 | N.Y. App. Div. | 1918

Jenks, P. J.:

When the will was filed in this State and the letters ancillary were issued, the recipients thereof became executors here — officers of our State and acting under our laws. (Hopper v. Hopper, 125 N. Y. 403; Smith v. Second Nat. Bank, 169 id. 472.) The provisions of the New Jersey law that suspended and canceled the power of the executors and trustees perforce of'the appeal from the decree for probate of the will in that State, should not be regarded as of extraterritorial force; despite such provisions, we should view the defendant in his relation to the realty in this State as executor and trustee. (Matter of Gaines, 83 Hun, 225; affd., 154 N. Y. 747.) But a reading of the complaint justifies the conclusion that the plaintiff seeks to charge the defendant in his representative capacity only, not personally. I think, therefore, that it cannot be sustained in this form. (Norling v. Allee, 10 N. Y. Supp. 97; affd., 131 N. Y. 622.) There was no contract relation between the plaintiff and the defendant.

The order is reversed, with ten dollars costs and disbursements, and the motion is granted, with ten dollars costs.

Thomas, Mills, Rich and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.