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In re the Estate of Zeller

2 Gibb. Surr. 577 Court N.Y. Sur. Ct. English

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p. 577
In the matter of the Estate of Magdalena Zeller, Deceased.
(Surrogate’s Court, New York County,
Filed November, 1898.)

Headnote

Guabdians — Non-Resident Aliens Cannot be.
Letters of testamentary guardianship will not be issued to a nonresident alien who has been appointed guardian by the will of a resident decedent.
Application of Ferdinand Roseher, an alien resident of Bavaria, Germany, for letters of testamentary guardianship under section 2852 of the Code of Civil Procedure.
Philip F. Schmitt, for petitioner; no other appearance.

The decedent, who was a resident of this-county, by her will, which has been duly admitted to probate here, appointed as testamentary guardian of one of her minor

p. 578
children a person who is a resident of Germany and an alien,, and wbo now files an application in which he accepts such appointment and prays that letters of testamentary guardianship may issue to him.

In Matter of Taylor, 3 Redf. 259, it was held by Surrogate Calvin that nonresident aliens, who were appointed by the-will of a resident testator guardians of his minor child, were, nevertheless, not entitled to letters of testamentary guardianship. The application in that case was made pursuant to the provisions of the Laws of 1877 (chap. 206), then in force. The provisions of that act are now incorporated in sections 2851, 2852, of the Code of Civil Procedure, and Mr. Throop, in his note to the first-named section, published in his. annotated Code (page 694), says that “the effect of the act of 1877, and doubtless of the revision thereof in this article, is that letters of guardianship cannot be issued to a nonresident, although he is appointed guardian by will.” Citing Matter of Taylor, supra. I shall follow these authorities, and, therefore, deny the application made herein.

Application denied.

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