
    Matter of the Application for Ancillary Letters of Administration with the Will Annexed of John McShane, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      July, 1911.)
    Executors and Administrators : Administration in General—Domiciliary, Ancillary and Foreign Administration—Propriety of and Grounds for Ancillary Administration : Appointment and Qualifications of Personal Representatives, Resignations and Removals—Right to Administer in General—On Foreign Wills.
    Since the amendment of 1881 to section 2697 of the Code of Civil Procedure the right of a surrogate to issue ancillary letters upon a will is confined to the cases specified in said section.
    The administrator with the will annexed is simply entitled to the possession of the property of his testatrix and does not by reason of the interest she had in the property of her testator become entitled to the possession of the latter’s property or that left by him; such possession belongs to his legal representative.
    Where the executrix of a last will and testament probated in Ireland who was also the sole legatee thereunder dies, her administrator with the will annexed appointed in the State of Massachusetts where her will was admitted to probate is not entitled to ancillary letters under the Irish will.
    Application for ancillary letters upon a foreign will.
    Howland, Murray & Prentice, for petitioner.
   Fowler, S.

Prior to the amendment to section 2697 of the Code of Civil Procedure it was decided by the surrogate of Kings county in Matter of Estate of Catherine Wise, Deceased, 2 Civ. Pro. Rep. 230, the court construing that section in connection with section 2695 of the Code of Civil Procedure, that the residuary legatee of a foreign will was entitled to ancillary letters of administration with the will annexed thereon, the sole executor being dead. Section 2697 was amended by chapter 535 of the Laws of 1881 by adding a provision authorizing the issuance of ancillary letters to a person not named in the foreign letters, but who was otherwise entitled to the possession of the personal property of the decedent, or to his delegate or nominee. Since this amendment there can be no doubt that the right of the surrogate to issue ancillary letters upon a will is confined to the cases specified in section 3697. See Baldwin v. Rice, 100 App. Div. 241; affd., 183 N. Y. 55.

The testator upon whose will the ancillary letters are here sought was a resident of Ireland, where his will was admitted to probate. The applicant for the ancillary letters thereon is the administrator with the will annexed of the executrix of the will of the testator, and sole legatee thereunder, appointed in the State of Massachusetts, where his testatrix resided and her will was admitted to probate. As such ancillary administrator he bases his claim to ancillary letters upon the contention that under the circumstances he is to be regarded as a person who, within the meaning of section 3697, is entitled to the possession of the personal property of the decedent. Neither under our laws nor those of the domicile of the decedent can the applicant by any stretch of reason be regarded as entitled to the possession of such property. He is simply entitled to the possession of the property of his testatrix, and does not by reason of the interest she had in the property of her testator become entitled to the possession of his property or that left by him. Such possession belongs to his legal representative. Had the fund deposited here by the executrix in her name as executrix been deposited in a bank in Ireland in the same way and under the same form, could the applicant, as administrator of her will probated in Massachusetts, by reason of the fact that she was the executrix or sole legatee under the will of decedent, be deemed the person entitled to the possession of his personal property and so be able to maintain a successful suit in an Irish court for the recovery of the funds deposited? Surely not. The provision on which the petitioner relies was evidently incorporated into section 8897 for the purpose of meeting the cases where, under the laws of the domicile of the testator, no letters testamentary or of administration cum testamento anneooo are issued, but the right of possession of the personal estate passes directly to the legatees or beneficiaries under the will.

While I should gladly have reached another conclusion in order to save the applicant further trouble, I am, after careful consideration, constrained to deny the application.

Application denied.

FOREIGN EXECUTORS AND ADMINISTRATORS.

An administrator appointed in one State has no authority as such administrator beyond that State. Ulster County Savings Institution v. Fourth National Bank, 28 St. Rep. 24; s. c. 8 N. Y. Supp. 162.

Letters of administration granted in another State, confer no standing in our courts, though they might protect one who had made a voluntary payment to such administrator. Ex parte Jones, 3 Redf. 257.

A foreign executor, who comes into this State, and receives assets here, may be sued as executor de non tort; and in such action, he must account for all the assets which have come into his hands, whether here or elsewhere. Campbell v. Tousey, 7 Cow. 64. See Brown v. Brown, 4 Edw. Ch. 343; s. c. 1 Barb. Ch. 189. McNamara v. Dwyer, 7 Paige 239. Gulick v. Gulick, 33 Barb. 92; s. c. 21 How. Pr. 22.

Assets belonging to the estate of a testatrix, domiciled and dying abroad, should be remitted to the foreign executor for distribution according to the laws of the jurisdiction where the will was made and established. Trimble v. Dzieduzyiki, 57 How. Pr. 208.

Assets situate in a foreign jurisdiction vest in an administrator there appointed; a suit to recover the same cannot be maintained by an executor to whom letters are granted in another jurisdiction. Holyoke v. Union Mutual Life Ins. Co., 22 Hun, 75; s. c. 84 N. Y. 648.

The remedy against a foreign administrator, to charge the assets of his intestate for a debt of the decedent, is governed by the law of the jurisdiction where he was appointed and must be pursued in the legal tribunals of the State or county where the decedent resided at the time of his death. Lyon v. Park, 111 N. Y. 350; s. c. 19 St. Rep. 626; 16 Civ. Pro. R. 109; affirming s. c. 23 J. & S. 539.

An executor who has obtained letters in a sister State, may dispose of the testator’s property in this State, without taking out ancillary letters here. Middlebrook v. Merchant’s Bank, 24 How. Pr. 267; s. c. 27 Ibid. 474.

If a deposit be made in the name of the depostor as trustee for another, the title to the fund becomes vested in him as trustee; payment, however, to his beneficiary is good and effectual to discharge the bank; and this, though the payment be to a foreign administrator. Schluter v. Bowery Savings Bank, 117 N. Y. 125; Affirming s. c. 13 St. Rep. 413.

Where administration has been granted in this State upon the estate of a non-resident, the foreign administrator cannot discharge a mortgage upon property within the State, as against the domestic administrator. Stone v. Scripture, 4 Lans. 186. Disosway v. Carroll, cited Ibid. 191.

A foreign administrator has power to assign a mortgage upon property within this State. Smith v. Tiffany, 16 Hun, 552.

One of two foreign executors cannot create a valid lien upon the assets, for services which inure to his individual benefit, as against the other executor, who has obtained administration in this State. Lawrence v. Townsend, 88 N. Y. 24.

Letters testamentary granted in another State, confer no authority to sue here; -nor can the party to whom they are granted be sued here, as executor. Campbell v. Tousey, 7 Cow. 64. Morrell v. Dickey, 1 Johns. Ch: 153. Chapman v. Fish, 6 Hill, 554. Vroom v. Van Horne, 10 Paige, 549. Brown v. Brown, 2 Edw. Ch. 343. Vermilya v. Beatty, 6 Barb. 429.

The rule that a foreign executor cannot sue or be sued in this State does not prevent such an executor from suing or being sued upon a contract made with him as executor. Johnson v. Wallis, 112 N. Y. 230; s. c. 20 St. Rep. 567; affirming 41 Hun, 420.

A foreign administrator may sue in his own name, upon a note payable to his intestate or bearer. Robinson v. Crandall, 9 Wendell, 425.

Where letters are granted by the Surrogate to foreign executors in a suit by them, it is not requisite to allege the probate of the will. Leland v. Manning, 4 Hun, 7.

A foreign administrator or executor appointed in another State has no authority to prosecute, in a representative capacity, either an action or a special proceeding in a court of this State, without taking out ancillary letters. Stewart v. O’Donnell, 2 Dem. 17.

A foreign administrator cannot sue in our courts without taking out letters here; if the action is brought “ as administrator ”, it cannot be claimed, in order to avoid the effect of a demurrer, that the action is in his individual capacity. Farrington v. American Loan and Trust Co., 18 Civ. Pro. 135; s. c. 9 N. Y. Supp. 433.

Since the office of an executor de son tort was abolished by Statute, an ordinary action at law will not lie against a foreign executor, as such. Metcalf v. Clark, 41 Barb. 45.

A foreign executor is not liable to be sued in this State upon the contract of his testator. Field v. Gibson, 56 How. Pr. 232; s. c. 20 Hun, 274.

A surviving executor may maintain a suit in" equity, against the foreign executor of a deceased co-executor, to compel him to account to the extent of the assets in his hands, for the misconduct and breach of trust of his testator. Price v. Brown, 10 Abb. N. C. 67.

Our courts have jurisdiction of an action against a foreign executor, domiciled in this State, to compel payment of interest on a legacy. Brown v. Knapp, 17 Hun, 160; s. c. 79 N. Y. 136, where the case was treated as a personal action.

In an action against a foreign administrator upon the guaranty of a bond made by his intestate, where the complaint avers assets within the jurisdiction of the court, and that the administrator is endeavoring to withdraw them from the State, and asks a money judgment and an injunction restraining defendant from receiving or collecting assets and for an accounting, a demurrer that the court has no jurisdiction of the person of defendant, or of the subject of the action, is well taken. Hankinson v. Page, 3 How. Pr. (N. S.) 323.

In a suit by a creditor of a decedent against the heirs to recover the value of the estate to which they succeeded and to reach the proceeds of a sale thereof, the fund being real property, a foreign administratrix was properly joined individually, by reason of her having obtained an order for the payment of the support of the infants out of the fund; she was not, however, a proper party iñ her capacity as administratrix. Hentz v. Phillips, 23 Abb. N. C. 15; s. c. 6 N. Y. Supp. 16.

A foreign administrator who takes out ancillary letters in this State becomes a domestic executor and as such may be sued by a foreign creditor on a claim arising in this State. Hopper v. Hopper, 125 N. Y. 400; s c. 35 St. Rep. 400; 20 Civ. Pro. 102; affirming s. c. 53 Hun, 394 ; 25 St. Rep. 132; 6 N Y. Supp. 271; 17 Civ. Pro. R. 214; which reversed s. c. 20 St. Rep. 58; 3 N. Y. Supp. 640.

A motion to open a default will not be granted to a foreign executrix who has not qualified in this State. Philips v. Levy, 15 Civ. Pro. 68; s. c. St. Rep. 889; 3 N. Y. Supp. 664.

A foreign executor who receives assets in this State, is not liable to account for them here, though he subsequently takes out letters of administration. Parsons v. Lyman, 20 N. Y. 103; s. c. Barb. 564; reversing s. c. 4 Brad. 268.

Whether our courts will decree distribution of assets collected here, under an ancillary administration, or remit them to the courts of the domicil, is a question of judicial discretion, not of jurisdiction. Ibid.

Where a foreign executor has submitted himself to the jurisdiction, a citation to account may be served upon him, at his place of residence in another State. Stevens v. Stevens, 3 Redf. 507.

A foreign administrator who brings assets into this State may be sued here for an accounting. Marshall v. Bresler, 1 How. Pr. (N. S.) 217.  