In re Sullivan — 24 Misc. 357

Majority

p. 357

Matter of the Application of William P. Sullivan for Letters of Administration Upon the Estate of Josiah A. Hyland, Deceased.

(Surrogate’s Court, New York County,

July, 1898.)

Headnote

Incompetent persons — Residence — Effect of appointment of committee.

Where a lawyer, resident in New York city, after having become mentally affected, is removed in 1894 by his brother to. the home of the latter in Oneida cohnty, about six months later1 i(3 ¡placed in a private asylum in Connecticut, and is then returned to his brother’s home, where, after the due appointment, by the Supreme Court in Oneida county, of the brother as the committee of his person and estate, he dies in 1897, the residence of the incompetent will be deemed to be in Oneida county, where he resided with his committee, and an application for the issue of letters of administration in the county of N.ew York will be denied.

Application filed January 26,1898, for letters of administration by William P. Sullivan, a nephew, alleging that decedent was a resident of this county and died in Oneida county while temporarily sojourning there, and further alleging that decedent’s brothers were aged, infirm, illiterate and incompetent to administer his estate. Decedent left no widow or issue.. Two brothers, nephews, his only next of kin. Citation was issued and answers filed in special appearances, objecting to the jurisdiction on the ground that decedent was a resident of Oneida county. All other questions were reserved

p. 358

until this question was determined. The brothers of decedent' were his nearest relatives, and when decedent became afflicted, took him to Oneida county, and after having him treated in a sanitarium in Connecticut brought him back and procured the appointment of one of his brothers as committee by the Supreme Ooup?t at Oneida* county, and subsequently the decedent died. It was insisted that this court should disregard that appointment, ap that court had no jurisdiction of the matter at the time. ■

Scott & Treadwell, for petitioner.

J. A. Devereux, for brothers.

A. D. Kneeland, for nephews.

Sayles, Searle & Sayles, for nephew, opposed.

This is an application for letters of administration by a nephew of decedent claiming that the said decedent was, at the time of his death, a resident of this county, although his death happened in Oneida county. Section 24/76, Code of Civil Procedure, subdivision 1. The application is opposed by a brother of decedent, who claims that the decedent was a resident of the county wherein he died, and that to the surrogate of that county belongs the jurisdiction of issuing letters upon his estate. The decedent was a lawyer, and had been engaged in the practice of his profession in this city, where he resided for many years prior to October, 1894. In that month, while being in a condition of mind that probably incapacitated him from effecting a change of residence by his own volition, he accompanied or was taken by his brother to the home of the latter, in Oneida county, in this state. In the following April he was placed in a private sanitarium or asylum in Connecticut for treatment and finally returned to his brother’s home, wheie he passed the last two years of his life. In April, 1.8 91, his brother was appointed the committee of his person and estate by the Special Term of the Supreme Court in the judicial district embracing the county of Oneida. The statute which provides for the appointment of a committee of the person or estate of an incompetent requires that the application therefor must be made to the Special Term of the Supreme ■ Court held within the judicial district or tó a

p. 359

justice of the Supreme Court within the judicial district where the person alleged to be an incompetent resides. Section 2323, Code of Civil Procedure. In view of this statute, it must, I take it, be assumed that the court, in appointing a committee for the intestate, made the proper inquiry as to his place of residence at the time of entertaining the application, and determined that he was a resident of Oneida county, where the court was held, or of the judicial district of which it formed a part.. I should be inclined to consider that this disposes of the claim that the intestate was a resident of this county at the time of his death. But whether it does or not, I have no doubt that the action of the committee in keeping and maintaining the decedent until his death in the home of the former, whither he had been removed before the appointment of the committee, was, under the circumstances, sufficient to effect a change of decedent’s residence in this city to that of -his committee in Oneida county. . Hill v. Horton, 4 Dem. 88 . The application of petitioner is dismissed.

Application dismissed.