
    In the Matter of the Application of Bernard Francis Rollo, as Foreign Committee of the Estate of Hugh Hamilton Stafford Northcote, an Incompetent Person, for the Appointment of a Committee in New York. Bernard Francis Rollo, as Foreign Committee, etc., and Others, Appellants; Hamilton Fish and Others, Respondents.
    First Department,
    July 11, 1912.
    Incompetent persons — right of foreign committee to appointment in this State — security —removal of property from jurisdiction.
    Where an incompetent, a resident of England, is the owner of a large estate invested in American securities and in the keeping of representatives in the city of New York, and is also interested in the income of a certain trust created here, the court should exercise its discretionary power, declared by section 3336 of the Code of Civil Procedure, and appoint the foreign committee of the incompetent as the committee of his property within this State.
    ' The order should be conditioned upon the filing of security, and that none of the property is to be removed from the jurisdiction of the court without application thereto.
    Appeal by the petitioner, Bernard Francis Rollo, as foreign committee, etc., and others from part of an order, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1912, refusing to appoint the petitioner as committee of the property of Hugh Hamilton Stafford Northcote in the State of New York, and also from part of an order entered in said clerk’s office on the 5th day of April,' 1912, modifying the prior order.
    
      Stephen H. Olin, for the appellants Bernard T. Rollo and others.
    
      Henry W. Taft, for the respondent Hamilton Fish.
    
      Edmund L. Baylies, for the respondents Sarah M. F. Webster and others.
    
      William B. Aitken, for the committee, respondent.
   Dowling, J.:

Bernard Francis Rollo, a resident of London, Eng., was on July 25, 1911, duly appointed upon proceedings brought in the High Court of Justice in Lunacy the sole committee of the estate and person of Hugh Hamilton Stafford Northcote, an incompetent, a resident of England for upwards of ten years. The incompetent is the owner of a large estate invested in American securities and in the keeping of representatives in the city of New York, and is also interested in the income of certain trust funds here created by Hamilton Fish, deceased, and" Hugh Oliver Northcote, deceased. Rollo petitioned the Supreme Court on December 21, 1911, for the appointment as committee within this State of either Hamilton Fish, an uncle of the incompetent, or the petitioner, or some other fit and proper person. He was under the impression then that the committee here would be under his direction and strictly ancillary to the foreign committee, and that he would have some technical control over the New York committee. On discovering that such was not the fact, he made affidavit on February 19,1912, of the reasons which had led him to suggest the alternative appointment of some one other than himself, and then prayed that he alone be appointed .the. committee here. This application has been opposed by the American as distinguished from the English next of kin, and is supported by the latter. The desire of the former has been to conserve the estate in this country, and as it was created largely as the result of trust funds created here, that the assets should not be removed abroad. The American next of kin joined in asking for the appointment of Hamilton Fish. The learned court appointed the New York Trust Company and David B. Simpson as a joint committee. There is not the slightest question raised as to the fitness, probity or capacity of any of those proposed as the committee or appointed as such. The American next of kin do not appeal from the appointment of the joint committee and express their satisfaction therewith. The English next of kin admit the qualification of the joint committee. But Rollo appeals from the refusal to appoint him, and no reason has been suggested why he should not have his powers extended so as to place him in charge of all the property of the incompetent and thus avoid divided responsibility and perhaps a clash in the administration of the estate. The power of the court, in its discretion, to appoint the foreign committee of an incompetent as the committee of his property within this State is expressly declared. (Code Civ. Proc. § 2326.) We think ■that this was a case where the discretion should have been exercised in favor of the petitioner. At the same time we realize the propriety of retaining in this jurisdiction the property now here, aggregating $787,000 in par valne, made up of stocks and bonds in American companies, and largely the result of a trust created by a resident of this State. When the incompetent became of age he came to this country and after receiving the accumulations of income, allowed his property to still remain in New York city where his father had been engaged in business. This indication of his own desires is not without force.

The order appealed from will, therefore, he reversed, without costs, and the petition of Bernard Francis Bollo for Ms appointment as committee will be granted, conditioned upon his filing security as such in the penal sum of $600,000, to be approved by a justice of this court; none of the property of the incompetent to be removed from the jurisdiction of tMs court without application thereto, and the payments directed by the order to be made to the various parties hereto to stand as approved.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Miller, J. (concurring):

I concur on the ground that, unless the foreign committee was appointed as provided by section 2326 of the Code of Civil Procedure, the court was required to proceed as provided by section 2327. (See Matter of Curtiss, 134 App. Div. 547:)

Order reversed, without costs, and petition granted on condition stated in opinion. Order to be settled on notice.  