Matter of Cornell , 267 N.Y. 456 ( 1935 )

Surrogate's Court Act, section 159, provides for ancillary letters upon foreign probate. Where a will of personal property made by a person who resided without the State at the time of the execution thereof, or at the time of his death, has been admitted to probate within the State where it was executed, or where the testator resided at the time of his death, the Surrogate's Court having jurisdiction of the estate must, upon an application, accompanied by a copy of the will, and of the foreign letters, issue thereupon ancillary letters testamentary.

The petition must set forth the names and residences of the creditors within the State and, upon the return of the citation, the Surrogate must ascertain, as nearly as he can do so, the amount of the debts due from the decedent to the residents of the State. Before ancillary letters are issued, the person to whom they are awarded must qualify, as prescribed for the qualification of an administrator, except that the penalty of the bond need not exceed twice the amount which appears to be due to residents of the State. The Surrogate, by section 164, may give full directions regarding money or other personal property received by the person appointed; and, by section 165, he may even require the person to whom ancillary letters are issued to pay the creditors here in full or pro rata. In other words, the only interest which the State of New York has in issuing ancillary letters testamentary is to protect our own creditors or the State tax. Beyond this, the executor will account for the assets in the place of his domicile.

Katharyn Oglesby Cornell died in Kansas City, Missouri, on June 4, 1933, leaving personal property in New York county consisting of stocks, bonds and cash in bank, having the approximate value of $65,000. She left a will appointing her former husband, from whom she had been divorced, Herman D. Cornell, executor. This will has been probated in the county of Los Angeles, California, and letters testamentary have been issued to the executor named. He has applied here, pursuant to the above sections of the Surrogate's Court Act, for ancillary letters testamentary, and they were issued to him by the Surrogate of New York county on July 31, 1933.

As Mrs. Cornell died in Kansas City, and was a resident there for a time, the Public Administrator of that place, William T. Alford, obtained letters of administration of her estate, although it does not appear that she had property there of any particular value. He has applied here for ancillary letters of administration so that the assets may be turned over to him as Public Administrator, out of which inheritance taxes may be paid to the State of Missouri. His immediate application, and the one before us, is to revoke the letters granted to Cornell, executor, and to require the Surrogate of New York county to try the issue presented by the affidavits regarding the domicile or residence of the testatrix at the time of her death. The Surrogate denied the application; the Appellate Division has reversed, not as a matter of discretion, but on the theory that the Surrogate had no discretion, but was required by the statute to conduct such a hearing and determine jurisdiction of the respective States.

We do not think any such duty rested upon the courts of this State. That Mrs. Cornell left a will, in which Mr. Cornell was made executor, is not denied; the fact appears to be admitted. Under no circumstances, therefore, is there an occasion for the Public Administrator of the State of Missouri to function. He has no interest so long as the will exists and has been duly probated. It may be that Mrs. Cornell was domiciled in Missouri, and that California had no jurisdiction to admit her will to probate. This is a matter to be settled between the courts of these two States, in which the State of New York is not at all interested.

Any decision made by the Surrogate of New York county regarding the domicile would not be binding upon any of the parties interested in this estate or upon Missouri or California. So far as we here are concerned, it is a useless proceeding, taking money out of the assets here which might better go to the creditors or beneficiaries. It leads nowhere except as it may possibly satisfy the feelings of a conscientious Surrogate in ordering a disposition. As before stated, this is now entirely in his hands. He can control the assets here and protect them in any way he sees fit and as he has done, by requiring a bond more than sufficient to protect their proper disposition. (Aspden v.Nixon, 4 How. [U.S.] 467; Wilkins v. Ellett, 9 Wall. [U.S.] 740; 108 U.S. 256-259; Iowa v.Slimmer, 248 U.S. 115; Harvard Law Review, vol. XLVIII, No. 6, p. 911, "The Administration of Intangibles.")

This is discretionary with the Surrogate whether he shall entertain any such proceeding. The Appellate Division has not reversed this discretion, but has held that he had no discretion, and in this we think it was wrong.

In actions between non-residents founded on tort, where the cause of action arose outside this State, our courts may refuse to assume jurisdiction. (Gregonis v. Philadelphia ReadingCoal Iron Co., 235 N.Y. 152, 160; Murnan v. Wabash Ry.Co., 246 N.Y. 244.) In Wedemann v. United States Trust Co. (258 N.Y. 315, 319) this court said: "An important function of ancillary administration is the application of decedent's local property to the payment of his debts but no less important, under some circumstances, is the duty to transmit assets to the domicile. There is a strong implication in section 165 of the statute that priority in the discharge of debts which are due to residents of this State is intended. We have held that the Surrogate possesses a discretionary right under that section to refuse to pass upon all claims whether of residents or non-residents. (Matter of Meyer, 244 N.Y. 598.) That is the law when an ancillary executor has been named in this State. In the case of an ancillary administrator, certainly the Surrogate's power to refuse would not be diminished."

The Surrogate of New York county was, therefore, not obliged as matter of law, on the application of the Public Administrator of Jackson county, Missouri, to hold a hearing and determine after a trial whether the will of Katharyn Oglesby Cornell was properly admitted to probate in the State of California, or, in other words, determine whether she was domiciled in Missouri or California.

The order of the Appellate Division, as before stated, reversed the Surrogate as matter of law. For the reasons which we have stated we are of the opinion that the Surrogate was justified in exercising his discretion in this matter. The order of the Appellate Division should be reversed, and that of the Surrogate affirmed. The second and third questions certified should be answered in the negative, making it unnecessary to answer the first question.