In re the Application for Letters of Administration on the Goods, Chattels & Credits of Flynn

Majority

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In the Matter of the Application for Letters of Administration on the Goods, Chattels and Credits of John Flynn, Late of Providence, Rhode Island, Deceased. Mary Ann Flynn and Others, Appellants; A. Nicholas Sheridan and Others, Respondents.

Headnote

Letters of administration—they will not be granted, on ths, application óf a nonresident alien to the puSlic administrator—the public administrator or next of hiñmüst petition therefor■—a claim against an estate■ within the jurisdiction ■of a surrogate is, property within his county— the public administrator is “ contingently" entitled to letters.. ■

Rose Ferrigan, a resident of the city of New York, who had personal property therein, died, leaving as> her sole next of kin a sister, Margaret Kehun, residing at Dundalk, Ireland. John Flynn of Providence, R. L, was appointed administrator of her estate and acted, as sole administrator until his death,, which occurred July 7, 19.02. •

The said Margaret Kehun died September 24, 1902. Prior to her death, she assigned all her interest in the Ferrigan estate to one Sheridan, a resident of Dundalk, Ireland.

At the time Flynn died, there was pending, undetermined/a proceeding by him for an accounting as. administrator, in which proceeding he had interposed a claim of upwards of §6,000 against the Ferrigan. estate which consisted of upwards of §9,000. After Flynn’s death, Sheridan, through an attorney, filed .a petition in the Surrogate’s Court, in which he asked that letters of administration he issued upon Flynn’s estate to the public administrator, which application was. opposed by the next of kin of Flynn.

Held, that, the Surrogate’s Court had no jurisdiction,, upon such application, to grant letters of administration upon the estate of Flynn to the public administrator unless some one or more of the next of kin of Flynn should apply for. .such letters within a specified time;.

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That Sheridan being a non-resident alien, the surrogate could not issue letters to him nor entertain a petition presented by him or another acting in his behalf for the issuance of letters;

That the existence of the claim made by Flynn against the estate was sufficient to give the Surrogate’s Court jurisdiction, upon a proper application, to issue' letters of administration upon his estate;

That the public administrator was absolutely or contingently entitled' to letters and that, upon an application duly filed by him, letters could be issued to him unless the next of kin of Flynn should see fit to make the application.

Appeal by Mary Ann Flynn and others from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 25th day of November, 1903, granting letters of administration upon the estate of John Flynn, deceased.

Carlisle Norwood, for the appellants.

George 11. Starr, for the respondent Sheridan.

This appeal is from an order appointing the’ public administrator of the county of New York administrator of the estate of John Flynn, deceased. The facts^ with few exceptions, are similar to the facts involved in- the appeal in Matter of Ferrigan (ante, p. 376). and for that reason it is unnecessary to state them .at length. Flynn, at the time of his death, was a resident of Providence, R. I. He died on the 7th of July, 1902, and there was then' pending and undetermined in the Surrogate’s Court of the county Of New York a proceeding for an accounting by him as administer of the éstate of ■ one Rose Ferrigan, deceased. He had in his possession, as such administrator, belonging to the Ferrigan estate, property of the value of $9,000 or upwards,- against which he had made a claim of upwards of $6,000. At the death of Mrs. Ferrigan her only next of kin was a sister, a Mrs. Kehun, a non-resident alien who resided at Dundalk, Ireland, and who died September 24,1902. Shortly before her death Mrs. Kehun assigned all her interest in the Ferrigan estate to A. Nicholas Sheridan, a non-residént alien, who also resided in Dundalk, Ireland. Upon the death of Flynn, Sheridan, through an attorney of this court, filed a petition in the Surrogate’s Court, in which he asked that letters of administration be issued upon Flynn’s estate to the public administrator. The appli

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cation, although opposed by the next of kin of Flynn, was granted and the public administrator appointed, “ unless some one or more of next of kin ” of Flynn should apply for letters of administration upon that estate and qualify as such within ten days after the service of a copy upon them of the order appealed from, and they have appealed. The order appealed from must be reversed, and for the reasons stated • in the opinion delivered in Matter of Ferrigan (supra). Sheridan, being a non-resident alien, could not obtain letters himself, nor was the surrogate authorized to entertain a petition for letters, whether the same was presented by him or another acting in his behalf.

In addition to the foregoing it isx also urged that the surrogate did not have jurisdiction to issue letters, inasmuch as there was no property belonging to Flynn in the State of Few York. We are, however, of the opinion that the claim made by Flynn against the Ferrigan estate, the validity of which was being determined in the Surrogate’s Court at the time of his death, was sufficient to give the court jurisdiction, and upon a proper application letters could be issued. The public administrator is absolutely or contingently entitled to letters (Code Civ. Proc. §§ 2660, 2662), and upon a petition duly filed by him, unless the next of kin see fit to make the application, letters can be issued to him.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements against the respondent Sheridan, and the proceeding instituted upon his petition dismissed, with costs in the court below.

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

Order reversed, with ten dollars costs and disbursements against the respondent Sheridan, and the proceeding instituted upon his petition dismissed, with costs in the court below.