In re Mayer

This is a proceeding for letters testamentary and also for ancillary letters. In the former proceeding for probate of several testamentary papers made in his lifetime by the deceased, Mr.

Prior to the Revised Statutes it will be remembered that the probation and approbation of testaments, commonly called the "probate,” in the courts of the surrogates of New York, conformed to the practice in the Ecclesiastical Courts known to the common law. Only in contested matters did the surrogate pronounce the judgment, then called a "definitive sentence,” which was followed by a decree, and not then unless an appeal was pursued. Sir Thomas Tomlins briefly indicates the common practice by the common testamentary law:

“The probate of wills * * * is done by granting letters testamentary to the executor under the seal of the court.”

This is confirmed by Toller on Executors (page 587):

“When the will is proved the original is deposited in the registry of the ordinary or metropolitan, and a copy thereof in parchment is made out under his seal and delivered to the executor, together with a certificate of its having been proved before him, and such copy and certificate are usually styled the probate.”

The former practice on probate is laid down in many books of authority. 4 Burns Ecc. Law, 315, 316'; Godolphin, Orphans Leg. 62; Swinburne on Wills, p. 6, § 14; 11 Viner’s Abridgment, 56; Bacon’s Use of the Law, 67. It was only in contentious probates, and after the allegations and proofs taken, that a definitive sentence by the court became necessary to the record on an appeal from the surrogate to the ordinary. Mortimer on Probate, 276. It may be observed that appeals in the civil law courts were always taken in ways not very dissimilar to our present practice.

The former probate practice in New York was substantially the same as at common law. Surrogate Kirtland, of this state, before the Revised Statutes of. 1830 indicated the common practice in this state.

“The meaning of probate of a will,” he says, “is generally understood to . be the proving of the will, making a copy of the same, indorsing the proof on the copy, and granting letters testamentary under the seal of the surrogate and annexed to the copy of the will. Kirtland’s Pr. 44>”

This is confirmed by Judge Dayton in his most admirable work on the practice of this court (page 212), a work, it may be remarked, which is one of the few classics among local law books, and one still much used, as I am authoritatively informed, in the highest court of this state in appeals of difficulty.

[1] After the Revised Statutes, an application for letters in a contested probate became a separate proceeding in New York. Judge Dayton, in substance, states that after the Revised Statutes the issu

[2] I now come to the next point in this proceeding: There are here two testaments, each specifying a different executor. Has the surrogate an inherent jurisdiction to look into the wills already admitted to probate and construe them in order to determine the better title to the office of an executor? On this point I am not in doubt. The general grant of jurisdiction to issue letters testamentary (section 2472, C. C. P.) necessarily carries with it the power 'to determine the better title to letters and the power to construe the wills probated in this jurisdiction if' such construction is necessary to determine the better title to letters testamentary. This power inheres in the general grant of jurisdiction to issue letters testamentary. When the surrogate is required to do an act, the legal requirement carries with it all the powers necessary to the fulfillment and execution of the act. It is unnecessary to discuss so plain a proposition.

This brings me to the gist of the matter now before me: The main facts regarding the situation of the wills are fairly indicated in my former opinion in the proceeding for probate. 144 N. Y. Supp. 438 , The so-called American will and also the so-called Erench testament, having both been probated in this jurisdiction, application is now made by the three executors named in the'American will for the issuance to them of letters testamentary. An application is also made on behalf of the French administrator, Monsieur Desbleumortiers, for the issuance to him of ancillary letters of administration. As it is contended by the latter that the appointment of the executors in the American will was revoked by the French will, that question will now be considered.

The petition of M. Desbleumortiers alleges that he is a resident of Paris and that on the 11th day of July, 1911, letters of administration were duly issued to him upon the estate of the late Mr. Constant Mayer, who died a resident of Paris, by a court of competent jurisdiction, and that an order to that effect was made by said court authorizing and directing M. Desbleumortiers to take possession of the property of decedent within the United States as well as in France. The petition also avers that Mr. Mayer had not been in, nor resided within, the state of New York for more than 12 years preceding his death, and on information and belief that there are no creditors in this state; that the so-called “French will” was, on May 13, 1911, ordered by a

Such parts of the "American will” admitted to probate as are necessary to the determination of the question at issue are as follows:

“This is my last will and testament; it annuls and renders void all former wills and testaments which I may heretofore have made.

“I give and bequeath to my cousin Gertrude, the wife of Dr. Henry Levy, residing at No. 1030 Grace street, in the city of Richmond, Va., the sum of six thousand dollars ($6,000).

“I give and bequeath to my cousin Emma, the wife of Mr. Arnold W. Brunner, architect, residing at No. 1748 Broadway, in the city of New York, the sum of four thousand dollars ($4,000).

“I direct my executors to divide the rest, residue and remainder of my estate in four equal parts, and I give and bequeath one of such parts:

“1. To the Mt. Sinai Hospital in New York.

“2. To the Hebrew Orphan Asylum in New York.

“3. To the Home for Aged and Infirm Hebrews in New York.

“4. To the Young Women Hebrew Association in New York.

“I appoint Mr. Fred Gotthold, 165 West Fifty-Eighth street, in the city of New York; Mr. Arnold W. Brunner, architect, 1748 Broadway, in the city of New York, and Prof. Richard Gottheil, of the Columbia University, in the city of New York, as the executors of this my last will and testament, and I request that they should not be called upon to give security for its faithful execution.

“In witness whereof I have hereunto set my hand and seal, this fifteenth day of July, 1908.” «

The pertinent portions of the “French will,” also admitted to probate, are as follows:

“I appoint Mr. Eugene Cuisenier my testamentary executor, with right of possession (‘avec saisine’) and power to collect alone, upon his mere receipt, all sums and claims which I may have at my death, notably all sums on deposit with Messrs. Morgan, Harjes & Company, bankers at Paris, for the purpose of carrying out the dispository provisions (dispositions) that I am about to make.

“The sum of one thousand francs in two bank notes of five hundred francs will be found in an envelope in the drawer of the little desk which is in the parlor; this sum is intended to pay for my funeral expenses. * * * ”

Then follow some bequests of money and of specified articles of personal property.

“I desire that all my household effects other than the articles of which I have already disposed be sent to the official auction rooms, and that the proceeds thereof be added to the sum which shall remain belonging to my estate, and that the whole be delivered to the Grand Rabbi of Paris, to be distributed by his care to eleemosynary institutions and to unfortunates, preferably to the aged and to widows. * * *

“I maintain all the other dispository provisions (dispositions) - which I may have made by another will.

“Executed at Paris at my domicile, 2 Avenue Elisées Reclus, on the first day of February, one thousand nine hundred and eleven.”

Mr. Mayer, the testator, died May. 11, 1911. His “French will” was executed on February 1, 1911. He then had 11,905 francs in

[3, 4] Before proceeding to consider the matter at issue, let me say that the word “dispository” in my former decree was used in the sense of dispositive. See Murray’s New English Dict., vol. 3, pt. 1, p. 494. I will now refer to some principles of law relevant to the case. In. these days of extended international intercourse and investments, it has become very common for a person dying seised or possessed of property in different countries to malee separate wills, each having more or less exclusive reference to the testator’s property in a particular country. In that event the courts of the country of the testator’s-domicile have no jurisdiction to probate the foreign will unless such foreign will is dependent in some way on the domestic will. Nor has-the foreign court jurisdiction to probate the will of the testator’s domicile unless such will is related to or depends on the foreign will. Jauncey v. Sealey (A. D. 1686) 1 Vernon, 397; In the Goods of Coode (1867) 1 P. & D. 449; Attorney General v. Dimond (1831) 1 Cr. & J. 356; Matter of Mayer, 144 N. Y. Supp. 439 . The case cited from. Vernon in the year 1686 is binding here.

It is also established by law that separate sets of executors -may be appointed for the different countries in which a testator may have property. Cf. Mortimer, Probate Law, 13; Dicey, Conf. Laws, 658; Attorney General v. Dimond, 1 Cr. & J. at page 359. In such event the foreign executors will not be entitled to administer here, nor our ex

[5] As a rule the jurisdiction of the probate court of a particular country in matters testatmentary depends primarily on there being property of the deceased situate within the country. Dicey, Conflict of Laws, 313; Mortimer on Probate, 13. When there is, for instance, a will of a foreigner executed at his domicile having reference solely to his property in this country, there is no rule of law which prevents the testator from nominating executors residing here whose office shall have exclusive reference to testator’s property in this country. Despard v. Churchill, 53 N. Y. 192 ; Hartnett et al. v. Wandell, 60 N. Y. at page 351, 19 Am. Rep. 194 ; Dicey, Conf. Laws, rule 181, p. 658; and cases cited before in the course of this opinion.

[6] I feel compelled to advert to a circumstance having no legal relation, but concerned with the justice of my conclusion. It would, perhaps, seem that the appointment of an executor in the French testament must necessarily have had reference to the law of New York, as it is sometimes assumed by our lawyers that, in countries where the modern Roman Law prevails or is a criterion, there is no such office as that of an executor of a testament. There is no proof now before me of the present French law on that point. I cannot assume, therefore, in this cause, that the office of an executor is either known or unknown in France. Although the point is not placed in the cause, I notice for my own satisfaction that while the office of executor was not named in the Justinian legislation, now known as the Corpus Juris Civilis, that subsequently to the reign of Justinian, a Constitution of the Emperor, Manuel Commenus (Constitutiones Imperatorias, p. 527) entitled “de executoribus testamentorum,” provided for “executors” who should oversee the fulfillment of certain legacies, not, however, displacing the heir—a necessity of a Roman will—but, as it were, superintending the execution of legacies and trusts. I was not therefore surprised to find that article 1025 of the Code Napoleon provided expressly for executors: “Le testateur pourra nommer un ou plusieurs exécuteurs testamentares.” The President de la Cour de Cassation, M. Troplong, moreover furnishes a commentary on this article in which he states in substance that the French law, which owes so much to Roman Law in all that concerns testaments, preserves, in accordance with ancestral customs, the office of executors in order to assure with more force and stability the will of the testator. Troplong, Commentaires, etc., IV, 172. Thus it is apparent to me that no injustice is done in this case by assuming, as I must from the evidence before me, that the naming of an executor in the French testament did not necessarily refer exclusively to the law of New York. I should have been sorry to reach a wrong conclusion on the point, although based on a necessary presumption of law.

The application for ancillary letters must be denied, afid letters testamentary will issue to the executors named in the American will, which has been admitted to probate. Settle decree accordingly.