
    In the Matter of the Application of Thomas J. Dunn, as Sheriff of the County of New York, and Julio F. Sorzano, Appellants, to Compel Paul Fuller, Respondent, to Judicially Settle his Account as Ancillary Administrator, etc., of Jean Fernand Auguste Pons, Deceased.
    
      Surrogate—ancilla/ry administrator, when not compelled to account at the instance of ' a creditor of the testator’s son whose right to sha/re in the estate is disputed.
    
    Where ancillary letters of administration are issued in the State of New York, under the will of a resident of France, proved in that country, a surrogate of the State of New York has no power to require the ancillary administrator to account at the instance of a judgment creditor of one of the testator’s sons, who has attempted to levy an attachment upon the distributive share to which he claims the testator’s son, although excluded by the terms of the will, is entitled under the laws of France, where the answer to the petition alleges that the other next of kin of the testator claim that the son is indebted to the testator’s estate in excess of his alleged distributive share.
    
      Semble, that as the right of the testator’s son to share in file estate was to he determined by the laws of France, and as the other next of kin of the testator resided in France and were not before the court, thus rendering impossible a final settlement in the State of New York, the refusal of the surrogate to compel such an accounting- was a proper exercise of his discretion.
    Appeal by the petitioners, Thomas J. Dunn, as sheriff of the county of New York, and another, from an order of the Surrogate’s Court of Rew York county, entered in said Surrogate’s Court on the 4th day of October, 1898, denying their application to compel said Paul Fuller, as ancillary administrator, etc., of Jean Fernand Auguste Pons, to account for the assets of his decedent.
    
      Charles Bulkley Hubbell, for the appellants.
    
      Joseph Kling, for tne respondent.
   Patterson, J.:

This is an appeal from an order of the surrogate denying an application of the petitioners to compel Paul Fuller, an ancillary administrator with the will annexed, to account for assets in his hands of the estate of J. F. A. Pons, deceased. Mr. Pons was a resident of France at the time of his deáth. He left a last will and testament by which he disposed of so much of his estate as he had authority to dispose of under the law of France. That will was established or proven in France. An ancillary administrator with the will annexed was appointed by the surrogate of Rew York, and upon- the death of such ancillary administrator, Mr. Fuller was appointed in his place. At the time the petition in this matter was presented, assets of the estate to a large amount were in the actual possession of Mr. Fuller as such administrator. The petitioners on ■ the present application are the sheriff of the county of Rew York and J. P. Sorzano, a judgment creditor of Luis Pons, a son of J. F. A. Pons, the testator. Luis Pons does not share in the estate of his father under the will. It appears from the petition that Mr. Sorzano began suit against Luis Pons to recover an indebtedness due from him, and in that action procured an attachment which was issued to the sheriff of the county of Rew York, and that a levy was made or sought to be made thereunder, by leaving with Mr. Fuller a certified copy of the warrant of attachment with a notice showing the property attached. The petitioners prayed that Mr. Fuller’s account as ancillary administrator be judicially settled, and that a distribution of the assets in his hands be decreed. The surrogate made an order on this petition directing a citation to issue requiring the ancillary administrator to show cause why he should not render and judicially settle his account and make distribution. The ancillary administrator answered and the surrogate made the order appealed from.

It is claimed by the appellants that Luis Pons is entitled under the law of France in his own right to a part of the funds in the hands of the ancillary administrator; that although he is excluded by his father’s will from sharing in the estate, yet by the law of France he could not be so excluded, and that, therefore, he has vested in him by an absolute right of succession a proportionate interest as one of three children of J. F. A. Pons. The appellants also claim that, by virtue of the attachment issued against the property of Luis Pons, they have acquired an interest in the distributive share of Luis Pons in the property of which his father died possessed, and that, therefore, they have a standing in court analogous to that of an assignee and are entitled to call the administrator to account as preliminary to or part of a proceeding to compel a distribution of the estate so that .the amount of the attachment may be realized.

It is unnecessary to pass upon those or many other questions that have been argued on this appeal, for we are of the opinion that the surrogate properly denied the appellants’ application for the reason that, so far as distribution is concerned, upon the facts as presented to him and the contents of the answer of the ancillary administrator to the petition, he had no jurisdiction to decree distribution. The only authority the surrogate has to direct the payment of a' legacy or a distributive share of an estate is derived from the Code of Civil Procedure. When it is made to appear to the surrogate (§ 2722) that a claim made to the legacy or the distributive share is disputed as to its validity or legality, and an executor or administrator files a written answer setting forth facts which show that it is doubtful whether the claim is valid and legal (and it may be stated on information and belief), or when it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction, then the petition must T)e dismissed, but without prejudice to an action or an accounting in behalf of the petitioner. The ancillary administrator in his answer says “ that the lieirs and next of kin of the said Jean Fernand Auguste Pons, other than the said Luis Pons, claim that said Luis Pons is largely indebted to the estate of his father, and in a sum much larger than a one-fourth interest thereon, and has received advances from his said father in a sum much larger than his said interest, which sum is still due and owing to the said estate.” And, further, he alleges, on information and belief, that at the time of the levy of the said attachment the said Luis Pons had no interest in any of the assets of the estate of the said Jean Fernand Auguste Pons in his hands ■as such ancillary administrator.” The surrogate, therefore, after the •answer was interposed had no jurisdiction to compel payment by the .ancillary administrator of a distributive share of Luis Pons in the succession.

But, irrespective of the question of jurisdiction, there is another reason why an accounting was properly denied. In whatever situation Luis Pons stands to the succession, his relation to it is the subject of judicial inquiry in France. The validity of the dispositions of the will of the testator is to be determined by the law of France. The final settlement of the estate is to be had in the courts of that ■ country. The law of France furnishes the rule applicable to rights in the estate either under or outside of the will. The courts of this State may be competent to pass upon such questions, yet, where the final settlement of the estate depends upon the ascertainment of facts affecting the right of Luis Pons to the whole or a part of a share in his father’s property, the adjustment on a final settlement of the estate must be made in France. It was held in Parsons v. Lyman (20 N. Y. 103), before the enactment of the Code of Civil Procedure, that whether the courts of this State are to" decree distribution of the assets collected here under an ancillary administration, or to remit the disposition thereof to the courts of the testator’s domicile, is not a question of jurisdiction, but of judicial discretion upon the ci/rcvmstcmces of the particular case. This rule was reaffirmed, since the passage of the Code, in Matter of Hughes (95 N. Y. 60); but it was also said in that case that the courts of the country where the ancillary jurisdiction is granted when decreeing distribution (Code Civ. Proc. § 2701) should apply the law of •the domicile, unless such application will interfere with the rights of creditors or infringe some controlling principle of public policy but it still remains that the exercise of judicial discretion depends, upon the circumstances of each particular case, and such circumstances were presented here as required the surrogate to deny the-application for an accounting, as that was merely a step towards, distribution.

It is manifest that the testator’s estate could not be settled; finally in this State. In the first place, the proper parties were not before the court. A general distribution, therefore, could not. be had. In Matter of Hughes (supra) ancillary administration was taken out in New York; the deceased was an inhabitant of Pennsylvania; all the assets were here, and the next of kin resided here. It was held that distribution might be decreed by the ancillary administrator here on the final settlement of his accounts; but the court said that if it appeared that there were creditors of the; intestate in Pennsylvania, whose debts were unpaid, and if they were entitled to payment out of the fund in the hands of the administrator here, it would afford a reasonable ground for remitting it to-the jurisdiction of the domicile. By section 2700 of the Code of Civil Procedure, the person to whom ancillary letters are issued is. peremptorily required to transmit the money and other 'personal property of the decedent received by him after the letters are granted, or found i/n his hands in another oa/paeity, to the State, territory or country where the principal letters were issued, to be disposed of pursuant to the laws thereof, unless a decree otherwise-directing has been made when awarding the letters, or upon an accounting, or by an order of the surrogate made during the administration of the estate, or by a judgment or order of a court of' record in an action to which the ancillary administrator is a party. Now it was here shown to the surrogate that the next of kin, all residing in France and not before the court, other than Luis Pons, claimed that he was largely indebted. to the estate of his father, and in a sum much larger than any interest he had in the estate, and that he had received advances from his father in a sum much larger than his interest, which sum is still due and owing to the said estate, and that upon these facts his right to participate in the succession was disputed. All these were matters that could not well be tried in the Surrogate’s Court on an. accounting of an ancillary administrator; and there being that claim of the other persons interested in the estate, and the surrogate being so advised by the answer of the ancillary administrator, he was right in exercising his discretion in refusing to grant an accounting.

The order of the surrogate should be affirmed, with costs.

Rumsey and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred in result.

Barrett, J.:

I concur on the first ground discussed, reserving my judgment on the second ground.

Order affirmed with costs.  