In re the Estate of James , 159 N.Y.S. 140 ( 1916 )

Cochrane, J. (dissenting):

Amedee De G-asquet James, an American citizen born in New Orleans, but a resident of France, married in New York April 21,1881, the appellant herein, who was also an American citizen. Immediately after their marriage they went to France where they resided until the death of the former which occurred July 28, 1903. They had four children. Three of the children ' were infants at the time of the death of their father. One has since died, leaving two children who are still infants. The deceased left real and personal property in Europe and also personal property in this country.

The deceased left a last will and testament dated June 10, 1902, and a codicil thereto dated February 14, 1903, whereby he gave to his wife, the appellant herein, all his property real and personal in Europe, including, as stated in the will, “ the full ownership of all securities without exception by me deposited either in Paris or in London with bankers,” except that she was to have the enjoyment during her life of his jewels and diamonds and those of his mother. The will made this additional provision for his children, viz.: “My fortune which is in America shall be divided between my children. I authorize my wife to put this fortune into the hands of one of the big Trust Companies (American).” He designated his wife as executrix of his will. The will and codicil were on the 30th day of July, 1903, duly admitted to probate or established in France according to the laws of the French republic. There is no claim that the appellant ever exercised the authority given her by the will to put the estate in thé hands of a trust company.

On the 19th day of March, 1904, in the Civil Tribunal of First Instance of Dinan, being a court in France having jurisdiction in the premises in an action or proceeding instituted in such court by the appellant and to which all of the legatees under the will of the deceased were parties, a judgment or decree was duly rendered by said Civil Tribunal of First Instance wherein it was recited that “the various defendants have submitted their rights to the court,” and said judgment or decree then declared and adjudged that said will and codicil should “be carried out according to their form and tenor,” and that delivery should be made to the appellant of the property given to her in and by said will and codicil.

Such proceedings were also had in the Surrogate’s Court of Ulster county, N. Y., in which county certain property of the deceased was located, that on the 22d day of March, 1904, the said will and codicil were duly established by said Surrogate’s Court and ancillary letters testamentary were duly issued to the appellant.

The appellant never rendered any account of her proceedings either in this country or in France until the year 1912, when, proceedings having been instituted in the Surrogate’s Court of Ulster county by the legatees under the will to compel an accounting by her as ancillary executrix, she instituted this proceeding for a voluntary judicial settlement of her account as such executrix.

The other parties to the proceeding are the three surviving children, legatees under the will of her husband, all of whom appeared in person and by attorney, and the two infant children of the deceased daughter who appeared by special guardian.

Objections to the account of the appellant were filed by the other parties to the proceeding and after a hearing before the surrogate he surcharged the account of the testatrix with a large amount and directed distribution of the estate to the three children of the deceased and to the general guardian of the two infant children of the deceased daughter.

The main contention of the appellant is that she and her husband not only resided but were domiciled in France; that her property rights pertaining to the estate of her deceased husband are to be determined according to the law of France; that according to such law “legal community,” so called, existed between her husband and herself and consisted of all the property which she and her husband owned at the time of their marriage or which they acquired thereafter; and that one-half of the community property belonged to the appellant and that her husband had no power to dispose of the same. For the purposes of this appeal none of the foregoing propositions have the effect of impairing the validity of the decree made by the surrogate for the reasons hereafter stated.

First. The appellant testified that she took and acceptéd possession of the property of her husband given her by his will including the real estate which he owned. In re Bayerque v. Ste. Saint Jean Baptiste d' Oleron (Court of Appeals of Pau, Clunet’s Journal of International Law, 1887, p. 479) the French court decided as follows: ‘ ‘Parties who have voluntarily carried a will into execution of the alleged defects of which they were aware, are presumed to have ratified the provisions therein contained. Whereas, the claim of the spouses Bayerque ought to be further rejected because of the voluntary carrying out the provisions of Romain Bayerque’s will, while they were aware of defects which would affect it under the French law, if submitted to said law; Whereas it is impossible not to see in such acts, the most absolute approval of the carrying out of the will of Romain Bayerque, the remittance of said sum having only been made to him, in conformity with the will, provided the distribution should be made in compliance with the wishes of the testator; that it is thereby shown that he accepted the mission intrusted to him in regard thereto by the will, and consequently, ratified thereby its provisions. ” The learned counsel for the appellant in answer to the above quotes other French law to the effect that if the legacy made by a husband to his wife where community exists is not a residuary legacy, the widow may at the same time accept the legacy and maintain her rights in the community. But it is stated in the authority cited “ if the legacy is residuary the widow is obliged to make her option and in accepting the legacy she implicitly renounces a community.” (Dalloz, 1909, pt. 2, p. 141, n. 2.) This seems to draw a distinction between a residuary legacy and one which is not a residuary legacy, and counsel for the appellant contends that her legacy under the will of her husband is not a residuary legacy. Whether it would, strictly speaking, be properly characterized as a residuary legacy need not be determined because in its general features and effect it partakes of the character of a residuary legacy. The effect of the testamentary provision for the appellant under the will is precisely the same as if the decedent, instead of employing the language actually used, had said: “ My fortune which is in America shall be divided between my children and all the rest, residue and remainder of my estate I give to my wife,”

Second. If there be any doubt as to the law of France applicable to this question it has been set at rest by the French court in reference to this particular case. At the instance of the appellant that court declared by its judgment or decree in an action or proceeding to which all the legatees under the will of the deceased were parties that the various defendants had “ submitted their rights to the court,” and that the will and codicil should “be carried out according to their form and tenor.” It is, therefore, no longer a question of what the French law is, but the question is what the French courts have declared that law to be in reference to the will of the deceased, and it has been determined by the French court that the will shall be given effect according to its tenor. The appellant suggests that resort was had by her to the French court as a matter of necessity, and that this judgment or decree was merely a formality. If that be so it does not alter the effect of such judgment or decree, and if the question is material, as the appellant insists it is, such judgment or decree should be considered by us as a definite and specific declaration by the courts of France as to the meaning and effect of the testamentary disposition which has been made by the deceased of his estate. By the judgment of the French court the question is res adjudicata here.

Third. The appellant has offered no evidence of the amount or value of the European property left by her husband or of her own property which she now claims went into the “ legal community.” The entire theory of her proceeding has been that there was no such “'legal community.” Her account filed herein was limited only to the American estate of her husband and contained this statement: “This account covers and includes only the American estate of the decedent which has come into my hands under said ancillary letters testamentary.’ She stated in her answer to the petition of certain of the respondents to compel an accounting that she had in her own right “ at least one-half million dollars unpledged and unincumbered,” but there is no more definite statement than that as to the value of her individual estate. Through her counsel and herself she resisted all efforts made by the respondents to ascertain the value of her husband’s European property and insisted on limiting the accounting to the American portion of his estate. For these reasons, therefore, it seems clear that the contention of the appellant that the distribution of her husband’s estate has not been decreed by the surrogate in accordance with the law of France is untenable.

It is further contended that the accounting was extended beyond its proper limits because the appellant was merely an ancillary executrix in this State and should not have been subjected here to a general accounting. It is well settled that ancillary executors have the same general power in this State as domestic executors so far as personal property is concerned. (Lockwood v. United States Steel Corporation, 209 N. Y. 375; Smith v. Second National Bank, 169 id. 467; Hopper v. Hopper, 125 id. 400, 404.) That would seem to be more particularly true where as in this case the ancillary executor and the principal executor are one and the same person. In Lockwood v. United States Steel Corporation (supra) it was held: “Ancillary administration in this State is regulated by statute and an ancillary executor or administrator has the same general powers as a domestic executor or administrator except in disposing of the decedent’s real property for the payment of his debts and funeral expenses.” And in Hopper v. Hopper (supra) it was written: “The Code provides (§ 2702)^* that all the provisions of its eighteenth chapter relating generally to Surrogates’ Courts and proceedings therein, and to the rights, powers, duties and liabilities of an executor or administrator, shall, with some minor exceptions, apply to a person to whom ancillary letters are granted, and thus puts him upon a level so far as his official character is concerned, with the ordinary executors appointed by our courts.” Whether our courts will exercise the power they thus possess and decree distribution of the assets collected in this jurisdiction under ancillary letters granted by them or will remit the disposition thereof to the courts of the testator’s domicile is a question of discretion to be determined with reference to the facts of each particular case. (Despard v. Churchill, 53 N. Y. 192; Matter of Dunn, 39 App. Div. 510, 513; Matter of Hughes, 95 N. Y. 55.) If the appellant had at the institution of this proceeding taken the position that the Surrogate’s Court should not exercise jurisdiction in respect to her proceedings and should leave the matter of distribution to the foreign country it may well be that the learned surrogate would have sustained her contention. But on the contrary she invoked the jurisdiction of the Surrogate’s Court. The respondents were legally entitled to an accounting by her as ancillary executrix and that was all they asked. She instituted an entirely independent proceeding and filed her petition for a voluntary judicial settlement of her account and in her account as filed she credited herself with moneys expended in Europe including testamentary and other expenses incurred there and payments made there to the legatees and for their benefit. The proceeding initiated by her lacked none of the features of a general accounting except that she insisted on not disclosing what property she had received in Europe. The determination of the surrogate has not gone beyond any feature thus injected by the appellant herself into the proceeding which she instituted. He has only adjusted" items which she has herself presented in reduction of her own liability. Having filed her account the proceeding was delayed about a year during the absence of the appellant from this country. The respondents in the meantime came to this country, filed objections to the account, were personally examined as witnesses before the surrogate in support of their objections, and were subjected to the delay and expense occasioned by the general accounting such as the appellant herself had instituted. It is true that about a year from the time when her account was filed and after the respondents had introduced all of their testimony in opposition thereto the appellant endeavored by motion to limit the account to the assets of the estate and to her transactions within the State of Hew York. But as she had herself invoked the power of the surrogate and had set in motion the machinery of the court for a general accounting and had thereby occasioned delay and expense,-it was not an improper exercise of discretion for the surrogate then to continue and conclude the proceeding upon the basis which she had initiated. All of the parties were before the court and the interests of all were promoted by decreeing distribution rather than by remitting the proceeds to France for that purpose. The latter course would have involved, merely more expense.

The surrogate refused to allow the appellant commissions. The estate was practically unadministered for a period of more than eight years. The preponderance of evidence shows and the surrogate has so found that the respondents were repeatedly demanding an accounting. During a portion of the time some of them were infants and some of them are infants even now. The estate having been left to take care of itself, and losses having occurred as the result of such want of administration, . it is difficult to see how commissions have been earned.

The findings of the surrogate and his directions seem to rest on sufficient evidence except in one particular. The appellant has credited herself and charged her son with 20,000 francs for an automobile purchased by her for him after he was twenty-one years old. After her son had used the automobile for some time he sold it to the appellant for 10,000 francs, which she has not paid. The surrogate reduced the item of 20,000 francs in her account to 10,000 francs, as we think erroneously. While the appellant owes her son 10,000 francs, it is not within the province of the court to adjust that indebtedness on this accounting, and the decree should be modified accordingly.

The decree should be modified in respect to the item for automobile, as indicated in the opinion, and as so modified affirmed.

Howard, J., concurred.

Motions to dismiss appeal denied. Decree reversed on law and facts and order directed as per opinion of Kellogg, P. J. Order to be settled by Kellogg, P. J. The court disapproves of the findings of fact numbered 8, 9, 16, 17, 18, 19, 20, 21, 22, 23, 24, 38, 39, 40, 41.

* ]STow Code Civ. Proc. § 2636, as amd. and renum. by Laws of 1914, chap. 443.— [Rep.