In re the estate of Cavin

The Surrogate.

This is an application by a son of deceased, who claims to be the executor of her will heretofore admitted to probate in New Jersey, for an order revoking letters of administration in chief issued by this court to one Thomas Gavin, also a son of deceased, and to George E. Clines, both residents of this county. The petitioner has already made an application for ancillary letters testamentary. A great deal of immaterial matter is set forth in the affidavits of the respective parties. In the answering affidavits to the application it is alleged that at the time of her death the decedent was a resident of this state. The son, one of the administrators, further alleges that he has received no notice of the existence of a will, nor of any application for its admission to probate either in New Jersey or elsewhere.

In determining this motion it becomes necessary to determine the application for ancillary letters testamentary. Section 2695, Code Civil Proc., provides that “ 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 by a competent court within the foreign country, or the state or territory of the United States, 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 made as prescribed in this article, accompanied with an exemplified copy of the will, and of the judgment, decree, or order so admitting the same to probate, and also of the foreign letters, if any have been issued, record the will and the foreign letters, and issue thereupon ancillary letters testamentary, or ancillary letters of administration with the will annexed, as the case requires.” It will be seen that, in order to grant ancillary letters testamentary, this court must be satisfied that the testatrix resided without the state at the time of her death or the execution of the will. This fact is in controversy, and cannot be determined on affidavits. The application for revocation of the letters of administration involves the same question of residence, and one other. If the alleged testatrix resided in this state at the time of her death, or the execution of the will, and the next of kin were not cited to attend the proceeding admitting the will to. probate in New Jersey, the letters of administration should not be disturbed until a proceeding is instituted in the courts of this state to admit the will to probate here. A reference must be ordered to determine the residence of deceased at the time of her death, or the execution of the will, and whether this respondent and next of kin was cited on the proceeding admitting her will to probate in the foreign jurisdiction.