Hyperlawhypertext legal database In re McShane's Will 132 N.Y.S. 470

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In re McShane's Will

132 N.Y.S. 470 Court N.Y. Sur. Ct. English

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p. 470
(73 Misc. Rep. 146.)
In re McSHANE’S WILL.
(Surrogate’s Court, New York County.
July, 1911.)

Headnote

1. Executors and Administrators (§ 518[2] ) — Ancillary Administration-Right to Appointment — Statutory Provision.
Under Code Civ. Proc. § 2697, as amended by Laws 1881, c. 535, authorizing the issuance oí ancillary letters of administration to a person not named in the foreign letters, but who is otherwise entitled to the possession of the personal property of the decedent or to his delegate or nominee, the right of the surrogate to issue ancillary letters is confined to the cases specified.
[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2299-2309; Dec. Dig. § 518.[2] ]
p. 471
2. Executors and Administrators (§ 128[2] ) — Possession and Management of Estate.
An administrator with the will annexed of a testatrix who is an executrix does not become entitled to the possession of the property of her testator, but the right to such possession passes to Ms legal representative.
[Ed. Note. — For other cases, see Executors and Administrators, Dec. Dig. § 128.[2] ]
3. Executors and Administrators (§ 518[2] ) — Ancillary Administration— Right to Appointment.
An administrator with the will annexed appointed in Massachusetts, whose testatrix was the executrix and sole legatee of a will probated in Ireland, is not entitled to ancillary letters under the Irish will’.
[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2299-2309; Dec. Dig. § 518.[2] ]
Application for ancillary letters of administration with the will annexed of John McShane, deceased. Denied.
Howland, Murray & Prentice, for petitioner.

[1] 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. Proc. R. 230, the court construing that section in connection with section 2695 of the Code of Civil Procedure, 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 2697 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 2697. See Baldwin v. Rice, 100 App. Div. 241 , 89 N. Y. Supp. 738 , 91 N. Y. Supp. 1086 , affirmed 183 N. Y. 55 , 75 N. E. 1096 .

[2, 3] The testator upon whose will the ancillary, letters 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. He 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 pos

p. 472
session 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 probated 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 annexe 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.

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