In re the Estate of Daniels , 25 Misc. 2d 12 ( 1960 )

Joseph A. Cox, S.

In the proceeding for the judicial settlement of the account of the executrix she asserted a claim to real property located in California and registered in the testator’s name. Her claim to this property has been challenged by objections interposed to her account. The instant motion was brought to restrain the executrix from taking further action in a proceeding instituted by her in California to determine the title to the same property. Upon the argument of this motion questions were raised as to this court’s jurisdiction to determine the issue presented by the objections to the account insofar as such objections concerned her claim to the California property.

This court does have jurisdiction to determine issues involving claims to real property in every instance where the resolution of such issues is necessary for a complete and equitable disposition of an accounting proceeding or other proceeding properly instituted here. This question was considered by this court in Matter of Guetta (17 Misc 2d 837) where the leading authorities were discussed. The cited decision concerned real property in this State and upon this motion a distinction is sought to be drawn because the real property claimed by the executrix is situated in another State. A basis for distinction would exist if jurisdiction of the parties, as distinguished from jurisdiction of the subject matter, depended upon the existence of a res before the court, but here the affected parties have personally appeared in the proceeding.

The controlling question is whether a determination of the issue is essential to the settlement of the account of the executrix. An executor does not receive commissions upon unsold real estate, he does not account for it as a principal asset and, if it is in a foreign jurisdiction, its descent is governed by the law of its situs (Knox v. Jones, 47 N. Y. 389). There may be occasion to adjudicate the issue of title raised by the objections to the account but it is not clear upon this motion that such an adjudication is essential to a settlement of the account. Certainly the California court does have jurisdiction to determine the issue and, in view of this, this court sees no reason to enjoin the executrix from prosecuting the action which she instituted in California. The motion is denied. Submit order on notice.