
    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 2097 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. Ilep. 230, the court construing that section in connection with section 2695 of the Code of Civil Proced-. ure, 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 2(197 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 2097. See Baldwin v. Rice, 100 App. Div. 241; affd., 183 N. Y. 55.

The testator upon whose will the ancillary letter© 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 2697, 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. lie is simply entitled to the p'ossession of the property of his testatrix, and does not by reason of the interest she had Lithe 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 probáted 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 2697 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. annexo 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.  