
    In the Matter of Robert S. Turton, Deceased. Government of British Honduras, Appellant; Harold A. Penso et al., Respondents. (Two Other Proceedings.)
    Argued. October 3, 1960;
    decided October 21, 1960.
    
      
      Franklin M. Desser and Bernard B. Smith for appellant.
    I. The Surrogate’s Court lacked jurisdiction of decedent’s estate. (Matter of Newcomb, 192 N. Y. 238; Matter of Connell, 221 N. Y. 190; Matter of Cornell, 267 N. Y. 456; Matter of James, 144 N. Y. 6.) II. The power of the State of New York to escheat or to take into custody ownerless property does not extend to nonresidents’ intangibles having no situs within the State. (Matter of Lagergren, 276 N. Y. 184; Matter of Menschefrend, 283 App. Div. 463.) III. The order under review is unconstitutional and a denial of due process of law. (The Sapphire, 78 U. S. 164; Guaranty Trust Co. v. United States, 304 H. S. 126; Westervelt v. Gregg, 12 N. Y. 202; Scott v. McNeal, 154 U. S. 34; Old Wayne Mut. Life Assn. v. McDonough, 204 U. S. 8; Twining v. New Jersey, 211 U. S. 78; Rees v. City of Watertown, 86 U. S. 107.) IV. The order under review must yield to the Treaty of 1899 and supplement of 1902 wherein appellant is accorded most favored nation status. (Hauenstein v. Lynham, 100 U. S. 483; United States v. Pink, 315 U. S. 203; Santovincenzo v. Egan, 284 U. S. 30; United States v. Belmont, 301 H. S. 324; St. Regis Tribe of Mohawk Indians v. State of New York, 5 N Y 2d 24.) V. The government, in default of blood relations of decedent, succeeds under its own statutes to his estate wherever located as the true heir.
    
      George H. Schwartz, Joseph T. Arenson, Samuel Spiegel, Waldemar J. Dittmar, George S. Goldberg and Maxwell J. Eile for respondents other than the Attorney-Greneral.
    I. Decedent’s New York property will not be delivered or transferred to a foreign, jurisdiction where such property would fall and belong to a foreign government. (Johnston v. Spicer, 107 N. Y. 185; Matter of Menschefrend, 283 App. Div. 463; Matter of Bonner, 192 Misc. 753.) II. The Government of British Honduras would take heifless property “ as bona vacantia ” and therefore has no standing here even on the authority of English law. III. The Surrogate’s Court had jurisdiction over the subject matter. (Matter of Lamborn, 168 Misc. 504, 255 App. Div. 755, 280 N. Y. 504; Matter of Clark, 6 Misc 2d 902; Matter of Neumayer, 168 Misc. 173; Matter of Christesen, 277 App. Div. 893; Matter of Connell, 221 N. Y. 190; Matter of James, 167 Misc. 142, 254 App. Div. 723.)
    
      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen, Paxton Blair and Tony Berman of counsel), for Attorney-General of the State of New York, respondent.
    The Appellate Division correctly affirmed the Surrogate’s ruling that appellant, as sovereign, had no right as an heir or distributee to intervene in the probate or administration proceedings pending in New York as to property located here. Moreover, the affirmed finding of fact, as to the issue of foreign law, is that appellant, under the terms of its own ordinance, is stated to be entitled to take heir-less property not as an “ heir ”, but as “ bona vacantia ”. Bona vacantia belong to the sovereign in whose jurisdiction they are located. (Matter of Menschefrend, 283 App. Div. 463; United States v. Fox, 94 U. S. 315; Irving Trust Co. v. Day, 314 U. S. 556; Riley v. New York Trust Co., 315 U. S. 343; Santovincenzo v. Egan, 284 U. S. 30.)
   Van Voorhis, J.

The Government of British Honduras, a Crown Colony of Great Britain, standing in treaty relations with the United States in all that concerns the right of disposing of every kind of property, real or personal, has moved to intervene specially in proceedings pending in the Surrogate’s Court of New York County for the probate of an alleged last will and testament dated November 12, 1955. Domiciled in British Honduras, the testator left a sizable estate claimed to be situated partly there, and partly in the States of New York, Illinois and in the Province of Quebec, Canada. His descendants are all illegitimates domiciled like himself in British Honduras. There appear to be no New York State creditors. The sole interest or power of New York State in or over the administration of his estate stems from the circumstance that stock certificates in 50 corporations were discovered in New York City as well as several bank or brokerage accounts also belonging to him at the time of his death. Both New York State and the (Government of British Honduras are seeking to recover on the basis that there are no known heirs entitled to inherit in intestacy.

The decedent left a will purporting to have been executed May 10, 1918, which was ordered by the Supreme Court of British Honduras on December 7, 1955 to “be admitted to probate without the erasures and interlineations thereto until a later will be found ’ ’ and letters of administration with the will annexed were issued “ for a period of twelve months or until a later will is found which ever event shall first occur ” upon the giving of a bond. These letters have been extended and continue in force and effect.

Thereafter an action was brought in the Supreme Court- of British Honduras, Probate Side, to have the 1918 will revoked and to probate the said alleged will of November 12, 1955 as a lost or destroyed testament.

The trial of that action was conducted in that British Crown Colony during more than 18 consecutive trial days and at least 14 witnesses testified, all of them residents of British Honduras, and its decision appears to have been delayed by the proponents of the 1955 document by appealing to the Privy Council in London, England, from an intermediate order to take the deposition of the former Registrar (General now living in Vancouver, British Columbia. A petition for ancillary letters of administration by the administrators with the 1918 will annexed is pending undetermined. Under section 159 of the Surrogate’s Court Act, the Surrogate must issue ancillary letters where a will of a person who resided without the State has been established in a foreign country. Temporary letters of administration have been issued in a separate proceeding to the Public Administrator of the County of New York. Notwithstanding the foregoing, the Surrogate in New York County elected to assume jurisdiction to probate the 1955 will and appointed a special guardian for infant legatees, and successive special guardians for unknown infants and incompetents, who, if they exist, are probably in British Honduras.

Invoking the rule that comity among free nations has long required that, in the orderly administration of the estate of a foreigner who dies owning personal property both at home and abroad, recognition be given to the fact that there is but one estate and that primary probate or administration proceedings should be undertaken by the appropriate court of the decedent’s domicile, all other proceedings being ancillary thereto (Parsons v. Lyman, 20 N. Y. 103, 119-121; Matter of Fitch, 160 N. Y. 87), and that, ‘ ' Where such a will has already been probated in the foreign country it may not be proved in an independent proceeding here ” (Matter of Connell, 221 N. Y. 190, 194; Matter of Cornell, 267 N. Y. 456, 463), the Government of British Honduras contends that the 1918 will having been admitted to probate in that jurisdiction subject to a later will being established, and in view of the action which has been tried and is now pending undetermined there to revoke it and to establish the 1955 will, the New York courts lack jurisdiction and that it is at least an abuse of discretion for them to undertake to probate the 1955 alleged will and thereby to decide an issue over which the court of the country of domicile has already assumed jurisdiction (cf. Matter of Lamborn, 168 Misc. 504, affd. 255 App. Div. 755, affd. 280 N. Y. 504, where Surrogate Foley declined jurisdiction under less compelling circumstances).

The theory under which British Honduras claims to be interested is apparently that the 1918 will was revoked by the execution of the alleged 1955 will, and that the latter has not come to light for the reason that it was revoked and destroyed during the lifetime of the testator without reviving the first will (Decedent Estate Law, § 41; Matter of Christesen, 277 App. Div. 893) or that British Honduras is entitled to any assets undisposed of under the 1918 will by its oavh statute for the benefit of dependents of the decedent and by existing treaties.

Section 147 of the Surrogate’s Court Act permits any person to file objections to the probate of a Avill Avho is “ interested in the event as devisee, legatee or otherwise ”. This accords Avith the more general right to intervene established by section 193-b of the Civil Practice Act. That Avould include the Government of British Honduras which claims the assets in this estate wherever situated under its statute entitling it to recover in event of intestacy in default of lawful distributees, and enabling it to use these to ‘ ‘ provide, in accordance with the existing practice, for dependents, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.” At this stage we are not called upon to determine whether the Surrogate lacked jurisdiction to entertain proceedings for the probate of decedent’s 1955 will, nor to decide whether, in case probate fails and in default of lawful distributees, the Government of British Honduras or the State of New York would be entitled to whatever personal property has a situs in New York. Neither do we now rule upon what effect probate of either will in British Honduras may or would have in New York, nor the effect in British Honduras of the probate of this will in New York State. It is sufficient that the rights of British Honduras may be affected if the will is probated in New York. The principles on which interested persons are permitted to intervene are sufficiently broad to include the Government of British Honduras as well as the Attorney-General of the State of New York (Matter of Davis, 182 N. Y. 468). Both are claiming assets of the decedent in case of intestacy. Each is entitled to be heard and to participate in this litigation. There is no reason on account of which the Attorney-General should be a party to the litigation while the Government of British Honduras, where the decedent was and all of his descendants and beneficiaries are domiciled, should be excluded. We decide no other question than that it should be permitted to intervene.

The order appealed from should be reversed insofar as appealed from, the question certified answered in the negative and the application of the Government of British Honduras to intervene in the proceedings now pending in the Surrogate’s Court of New York County granted, with costs in all courts.

Burke, J. (dissenting).

We do not believe that the Government of British Honduras has shown that it possesses a status which would require the Surrogate to grant it permission to intervene in a proceeding to probate a will in New York disposing of the personal property of a nonresident decedent. Although a person lacking status to intervene in a proceeding obviously may not attack the jurisdiction of the court, the circumstances of this case impel us to observe that the Surrogate unquestionably had discretion to probate this nonresident’s will insofar as it related to personal property in this State. (Surrogate’s Ct. Act, §§ 45, 202.) In this connection it is significant to note that no will has been admitted to probate in British Honduras in solemn form. In the proceedings to have the 1955 will probated in solemn form, the proponents of the 1918 will which was asserted by way of counterclaim offered it as probated in common form. The common form of probate is not deemed a probate within the meaning of our statute. (Matter of Connell, 221 N. Y. 190.) Unless a will has been probated in the foreign country in a manner which complies with our statutes, ancillary letters may be withheld. (Surrogate’s Ct. Act, § 159; Matter of Gifford, 279 N. Y. 471.) It is well known that when a nonresident’s will is admitted to probate in New York all the proceedings relate only to the assets located in New York. Thus the scope of inquiry into the asserted right of the Government of British Honduras to participate in the New York proceeding is circumscribed by the specific nature of the interest it claims in the property situated in New York. In this regard we must consider the posture in which the case came to this court.

For the purpose of the application, the Surrogate and all parties assumed that the decedent died intestate a domiciliary of British Honduras and he left him no person with any right of succession prior to that of the government. It is clear, therefore, that the Government of British Honduras does not represent the deceased, is not acting for a domiciliary administrator, and is not and never has been acting as decedent’s administrator in British Honduras. The probate of the will here will only affect the rights of persons who have an interest in the New York property. Since nothing that is done in the New York proceeding will in any way affect the Government of British Honduras ’ rights, if any, to administer or take the property of the decedent that is located in other jurisdictions, a right to take property of the decedent that is located in British Honduras cannot endow it with an interest in these proceedings. The Government of British Honduras had to prove that it had a pecuniary interest in the assets located in New York in order to have standing to intervene in the proceeding to probate the will (Surrogate’s Ct. Act, § 147). Since an escheat of the property is involved, the Government of British Honduras had to claim the property in New York through the decedent. To establish such a relationship, the government admittedly had to establish its capacity to take the New York property as an heir. In fact, the government did base its claim to intervene on the theory that it was an heir. But its claim to such status was correctly found to be untenable. Where, as here, the relevant statutes of the foreign government reveals that the government would take property as “ bona vacantia ”, that government is neither recognized as an heir of its domiciled decedent (Matter of Menschefrend, 283 App. Div. 463, affd. 8 N Y 2d 1093, decided herewith) nor is it qualified upon intestacy to take his personal estate within New York. We find it difficult, therefore, to follow the court’s statement that we are not deciding whether, if probate fails and there is a failure of heirs, the Government of British Honduras would be entitled to the personal property which has a situs in New York. That was decided in the courts below and is the sole question for determination here.

The order of the Appellate Division should be affirmed and the question certified answered in the affirmative.

Chief Judge Desmond (dissenting).

I concur with Judge Burke for affirmance.

" ‘ Where a person seeks to intervene and the question of his right to do this is raised, the surrogate must determine the status of that person before permitting intervention. It is the right and duty of the surrogate to try the question of interest if it is raised before allowing any person to contest a will even where such person is named in the petition as an interested party ” (2 Warren’s Heaton, Surrogates’ Courts [6th ed.], p. 528; see Matter of Davis, 182 N. Y. 468, 472-473; Matter of Cook, 244 N. Y. 63, 72). Intervention, therefore, cannot be allowed as a matter of discretion, favor or comity. The Surrogate, recognizing this as did the parties, conducted the trial to determine whether there was any basis for the claim of right asserted by the Crown Colony of British Honduras, that is, the claim that if the decedent should be found to have died intestate the Crown Colony in its own right would, under its local statute, be decedent’s sole heir as to all his property wherever located. The Surrogate in a decision which I believe to be clearly correct and which the Appellate Division unanimously affirmed, held against that claim of right and, accordingly, refused to permit intervention. Our court, however, is now reversing and ordering intervention without passing at all on the only question presently in litigation, that is, the status or interest of the petitioner Crown Colony.

Judges Dye, Froessel and Foster concur with Judge Van Voorhis. Judge Burke dissents in an opinion in which Chief Judge Desmond concurs in a separate opinion and in each of which Judge Fuld concurs.

Order reversed, with costs in all courts to appellant payable out of the estate, and the application of the Government of British Honduras to intervene in the proceedings now pending-in the Surrogates’ Court of New York County granted. Question certified answered in the negative.  