
    In the Matter of the Application for Letters of Administration, with the Will Annexed, on the Estate of Gottlieb Gennert, Deceased. Maurice G. Gennert and Others, Appellants; Edmund Wuestner, Respondent.
    
      Ancillary letters of administration with the will annexed—when they should not be granted on the solvent estate of a non-resident upon the application of a creditor residing in the State of the decedents residence, to which place all personal property in the State of New Toi'h at the decedents death has been removed.
    
    A resident of the State of New Jersey died in that State leaving a will which was. admitted to probate therein. Letters testamentary were issued by the New Jersey court to the executors named in the will who were residents of the State of New Jersey.
    Upon an application made by a resident of New Jersey, claiming to be a creditor of the estate, to the surrogate of the county of New York for ancillary letters of administration, with the will annexed, it appeared that the estate was solvent; that at the time of the application there was no personal property of the estate within the State of New York and that there were no creditors of the estate residing in such State; It further appeared, however, that the testator died seized of real estate in the State of New York which was disposed of by his will and that at the time of his death he had personal property in the State of New York.
    
      Reid, that even if the Surrogate’s Court had jurisdiction to issue ancillary letters of administration with the will annexed upon the testator’s estate, it should not exercise such jurisdiction upon the facts presented;
    That the practice which prevails in the Supreme Court, as to its refusal to exercise jurisdiction in certain cases between non-residents, should prevail in. the Surrogate’s Court where claims are made against an estate all thé personal property of which is in another State in which the claimant, as well as the executors of the estate, resides.
    
      Semble, that the Surrogate’s Court did not have jurisdiction to grant the application.
    
      Appeal by Maurice G. Gennert and others from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 25th day of April, 1904, granting the application of Edmund Wuestner for the issuance of ancillary letters of administration, with, the will annexed, upon the estate of Gottlieb Gennert, deceased.
    
      Charles K. Beekman, for the appellants.
    
      G. Ewald Menzel, for the respondent.
   McLaughlin, J.:

On the 5th day of March, 1901, Gottlieb Gennert died in the State of New Jersey, of which he then was and for many years prior thereto had been a resident. He left a last will and testament which was admitted to probate by the surrogate of the county of Hudson in the State of New Jersey on the 29th day of March, 1901, and letters testamentary issued to the executors therein named, who have since and now are acting as such.

On the 29th day of December, 1903, one Wuestner, then a resident of the State of New Jersey, presented a petition to the Surrogate’s Court of the county of New York praying for a decree awarding letters of administration, with the will annexed, to him or to such other person or persons as might have prior right thereto, and that a citation be issued to persons having a prior right, including the public administrator of the county of New York, to show cause why such a decree should not be made. A citation was issued to the necessary parties, on the return of which the executors named in the will appeared and objected to the granting of such letters upon the ground, among others, that it appeared from the petition and answer thereto that the surrogate of the county of New York did not have jurisdiction to grant the same. The objection was overruled and a decree entered that unless the executors named in the will or some one of them, within twenty days from the entry of the decree, took out ancillary letters testamentary upon the estate of the deceased that then and in that event the application of the petitioner was granted and ancillary letters of administration, with the will annexed, should thereupon issue to him or to such other suitable and proper person as the surrogate might then designate.

It is from this decree that the executors have appealed. They assert that the decree is invalid principally upon the ground that upon the conceded facts the Surrogate’s Court did not have jurisdiction of the subject-matter and, therefore, had no power to make the .decree. The conceded facts are that the testator was a resident of New Jersey and died in that State ; that his will has been there probated and letters testamentary issued to the executors, all of whom reside therein; that the petitioner is now and ever since the death of the testator has been a resident of that State; that there are no creditors of the estate of the deceased residing in the State of New York, and there is now no personal property within such State; that the estate is solvent. In connection with these facts it, however, appears from the petition that the testator left real estate in the State of New York, which was disposed of by his will, and at the time of his death had personal property therein; that the petitioner is a creditor of the estate in a considerable amount'. This latter fact, however, is denied by the answer, and in connection therewith it is asserted that in January, 1892, the petitioner commenced an action in the Supreme Court of the State of New York against the deceased for an accounting, which action was never brought to trial, but was pending at the time the testator diedthat in 1897 the. testator recovered a judgment against the petitioner in the Chancery Court of the State of New Jersey for $6,701.30, which, with interest thereon, now amounts to upwards of $9,000, no part of which has been paid; that in pursuance of the laws of the State of New Jersey the executors have duly advertised for claims against the estate represented by them and that no claim has been filed by the petitioner, although the time in which to do so expired over two years ago. .Also, that the petitioner has-no valid claim against said estate, nor are there any creditors of it.

It is unnecessary at this time to determine whether the Surrogate’s Court had jurisdiction to issue ancillary letters or letters of administration with the will annexed, because if it did, such jurisdiction ought not, upon the facts presented, to have been exercised. The petitioner, as well as the executors, reside in New Jersey; all of the personal property of the decedent is in that State, and it is conceded that the estate is solvent. Under such circumstances the petitioner should resort to the -courts of that State to enforce his claim.. . The Supreme Court has many times refused to entertain jurisdiction in certain cases between non-residents and has condemned the practice of importing such litigation into this jurisdiction. In Robinson v. Oceanic Steam Nav. Co. (112 N. Y. 315)- the court, referring to this subject, said : “ The discrimination between resident and nonresident plaintiffs is probably based upon reasons of public policy, that our courts should not be vexed with litigations' between nonresident parties over causes of action which arose outside of our territorial limits. Every rule of comity and of natural justice and of convenience is satisfied by giving redress in our courts to non-resident litigants when the cause of action arose or the. subject-matter of the litigation is situated within this State.” This case was cited with approval in Hoes v. N. Y., N. H. & H. R. R. Co. (113 N. Y. 435), where the court strongly reprobated a device by which it was sought to acquire jurisdiction over a foreign corporation by bringing personal property of an intestate into this State and then applying for letters of administration upon the ground that there was personal property within the State. In Gollar d v. Beach (81 App. Div. '582) this court held that it would not retain jurisdiction of an action brought by a resident of the State of Connecticut against another resident of that State, upon a cause of action arising therein to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant,"unless special facts and circumstances Were shown to exist which required such retention. And in Ferguson v. Neilson (11 N. Y. Supp. 524), Yak Brunt, P. J., said that it was against the settled policy of the State to permit our courts to be used by non-residents for the redress of personal injuries received in the State of their domicile.

I am of the opinion that the practice, which prevails in the Supreme Court as to its exercising jurisdiction in certain cases between non-residents should prevail in the Surrogate’s Court where claims are made against an estate, all the personal property of which is in another State, in which the claimant as well as the executors reside. It is true there is real estate in the State of New York, but this cannot be reached for the payment of debts unless the personal property is insufficient for that purpose. The chief object of the provisions of the Code of Civil Procedure as to ancillary letters of administration of estates is to preserve and protect the claims of creditors residing in this State. This is apparent when certain sections are considered. Thus, section' 2698 requires that a citation must issue to all such creditors before ancillary letters can be ; v granted. Section 2699 provides that upon the return of the citation the surrogate must ascertain as nearly as he can do so the amount of debts due or claimed to be due from the decedent to residents of the State, and that before ancillary letters are issued the person to whom they are awarded must qualify by giving a bond which may, in the discretion of the surrogate, be limited to such a sum, not exceeding twice the amount which appears to be due from the decedent to the residents of the State, as will, in the surrogate’s opinion, effectually secure the payment of those debts, and the only authority which is expressly given to a surrogate to direct any other disposition of funds in the hands .of one holding ancillary letters than the transmission of the same as prescribed by section 2700 to the State, Territory or country where the principal letters were granted, to be disposed of pursuant to the laws thereof, is section 2701. There, discretionary power is vested in the Surrogate’s Court to direct the payment, out of moneys received in this State of such debts as the decedent owed to persons residing in the State. Considering, therefore, the object sought to be accomplished by the provisions of the Code of Civil Procedure relating to ancillary letters of administration; in connection with the fact that the testator at the time of his death lived in FTew Jersey; that his executors and this petitioner now live there; that the estate is solvent and all the personal property is now in that State,, I am of the opinion that the surrogate should have refused to entertain jurisdiction.

The sections of the Code of Civil Procedure (§§ 2643, 2695) cited in the memorandum of the surrogate as authority for granting the letters have no application and do not give a surrogate jurisdiction to grant ancillary letters of administration upon the petition of a claimant of an estate situated as this one is. Section 2643 provides that if no person is named as executor in the will or selected by virtue of a power, contained therein, or if at any time by reason of death, incompetency adjudged by the surrogate, renunciation * * '* or revocation of letters, there is no executor or administrator with the will annexed qualified to act, the surrogate must, upon the application of a creditor of the decedent or a person interested in the estate of the decedent * * * issue letters of administration with the will annexed.” Hone of the conditions named in this section exist. Here all of the executors named in the will have qualified and are acting. Section 2695 simply provides that where a will of personal property made by a person who resided out of the State at the time of the execution thereof, or at the time of his death, has been admitted to probate 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 pre-scribed in article 7 of title 3 of chapter 18, accompanied by a copy of the will and of the foreign letters, if any have been issued, authenticated as prescribed in such article, record the will and foreign letters, and issue thereupon ancillary letters testamentary or ancillary letters of administration with the will annexed, as the case requires. When this section is read in Connection with the other sections relating to ancillary letters, it is clear that the Surrogate’s Court can obtain jurisdiction only upon the petition of the person to whom letters of administration or letters testamentary have been issued in another State, Territory or country, or else upon the petition of a creditor residing in this State. Ho provision is made by which jurisdiction can be invoked by a creditor residing in another State, and for that reason the decree here, in any event, would have to be modified, inasmuch as it directs that “ ancillary letters ” issue to the petitioner. If the petitioner could obtain letters at all, it would be only by virtue of the jurisdiction conferred upon the surrogate under subdivision 4 of section 2476 of the Code of Civil Procedure, and this upon the ground that the testator left real estate in the county of New York disposed of by his will. These would be principal and not ancillary letters. But this real estate, as already indicated, cannot be sold for the payment of debts until the personal property has been exhausted, and there is no proof but what there is sufficient personal property to pay all of the debts in full; indeed, it is admitted that the estate is solvent. It would seem, therefore, under this subdivision, to institute a proceeding for letters or to confer jurisdiction upon the surrogate to grant them, something more would have to be set out in the petition than the bare statement that the decedent left real estate in the county where the application was made, and the petitioner was a claimant residing in another State, But whether this be correct or not, I am of the opinion that upon the conceded facts the surrogate ought to have denied the petitioner’s application.

It follows, therefore, that the decree'appealed from , must be reversed, with costs, and the application of the petitioner denied, with costs.

Van Brunt, P. J., O’Brien, Hatch and Laughlin, JJ., concurred.

Decree reversed, with costs, and application of petitioner denied, with costs,  