In re the Judicial Settlement of the Estate of Braithwaite

Majority

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In the Matter of the Judicial Settlement of the Estate of Robert Braithwaite, Deceased.

(Surrogate’s Court, Monroe County,

Filed May 23, 1887.)

Headnote

1. Distribution op decedent’s personal property governed by law op RESIDENCE OP DECEDENT.

The testator made a will while a resident of New York and a widower, leaving his estate to the children he then had. He afterwards inter-married and removed to the state of Maryland, where he afterwards died, leaving a widow, hut no issue of his second marriage. The will was admitted to prohate in Maryland, and letters of administration, with the will annexed, Were issued in the state of New York. The law of Maryland gave the widow a third of the personal estate notwithstanding the will. Held, that the widow was entitled to have the distribution of the personal property in New York, made according to the laws of the state of Maryland, and to receive such share thereof as the said law assigns to her.

2. Practice—How estate distributed—When two administrators.

When there are two administrators of an estate, one in the place of the domicil of the testator or intestate, and the other in a foreign jurisdiction, whether the courts of the latter will decree distribution of the assets or remit them to the jurisdiction of the domicil is a question, not of jurisdiction. but of judicial discretion, depending upon the circumstance of the particular case.

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The following are my findings of facts and law in the above entitled matter, viz.:

First. That the above named Robert Braithwaite duly-made and executed his last will and testament on December 21, 1869, and thereafter a codicil thereto on June 19, 1873.

That both of said instruments were so executed by said Braithwaite while a resident of the state of Mew York within the limits of said state and in accordance with the law.

Second. That said Braithwaite, on December 4, 1874, being then a widower, and having living children and a grandson, married the contestant herein, now Sarah B. Fleming, who thereafter cohabited with said Braithwaite as his wife until his death.

Third. That after his said marriage the said Braithwaite removed from the state of New York to Talbot county, Maryland, and became a resident of the last mentioned state, continuing to live therein until his death, which occurred in Talbot county, Maryland, aforesaid, on March 21, 1882.

That his widow and children aforesaid survived him, but that no issue was born of the marriage with contestant.

Fourth. That on March 27, 1882, the aforesaid last will and codicil were duly admitted to probate by the then surrogate of Monroe county, M. Y., with the knowledge and consent of the widow of Braithwaite, this contestant, and letters duly issued thereon.

Fifth. That on May 19, 1882, the said last will and codicil were duly admitted to probate by the registrar of wills of Talbot county, Maryland, and letters of administration, with the will annexed, were issued to the said widow, Sarah Braithwaite.

Sixth. That after the issuing of letters as aforesaid, administration upon such parts of decedent’s estate as were within their respective jurisdiction was undertaken by the several persons to whom such letters had been issued, and that all debts of said decedent had been paid before this proceeding was begun.

Seventh. That said will and codicil were valid to pass personal property, both within the laws of Mew York and the laws of Maryland, subject, however, to such further laws affecting distribution as were in force in the state of the testator’s domicile at the time of his death:

Eighth. That at the time of the death of said Braithwaite it was the law of Maryland, and still is the law of that state, that the widow of a man leaving her and children surviving him, and in whose will no provision for such widow has been made, should take, as such widow, one-

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third of the personal estate of such decedent remaining' after the payment of his debts,' and that the will takes, effect only upon the remainder of the estate.

As conclusion of law from the foregoing facts:

That as to the rights of this contestant, the widow of decedent, the laws of the latter’s domicile, viz.: the state of Maryland must control the distribution of .the personal estate remaining after deducting commissions and expenses of accounting, and that said widow is entitled to one-third of the personal estate now here for distribution after the making of said deduction, and that the remainder thereof is to be disposed of according to the terms of the will and codicil aforesaid.

J. A. ADLING-TON, Surrogate.

Dated May, 23, 1887.

Be L. Crittenden, J. M. Angle and G. H. Smith, for the administrator, with will annexed, and legatees; Fanning & Williams, for contestant.

Eobert Braithwaite, while domiciled at the city of Eochester, N. Y., made his last will and testament, which was duly executed, according to the laws of this state, on December 21, 1869, and thereafter he likewise-made a codicil to said will dated June 19, 1873.

By these instruments he gave his entire estate, in equal shares, to his two living children and a grandson, making no mention therein of the person who afterwards became his wife.

On December 4, 1874, the said Braithwaite married the-contestant herein at Eochester, N. Y., and thereafter removed with her to Talbot county, Md., with the intention of becoming a resident of the latter state.

He established his domicile there, and continued to live there with his wife until his death, which occurred on 'March 21, 1882.

He left him surviving his widow Sarah, his two children and the grandson above mentioned.

There was no issue of the marriage with this contestant.

The said will and codicil where duly admitted to probate by the surrogate of Monroe county, N. Y., on the 27th day of March, 1882, the decedent having left personal property in said county.

This contestant had due notice of said probate and consented thereto. Thereafter letters of administration, with ■ the will annexed, were duly granted by the said surrogate-court to William T. Braithwaite, who by proper petition and citation, began this proceeding for a judicial settlement, of his account as such administrator.

The widow, formerly Sarah Braithwaite, now Fleming,,

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filed formal objections to certain items of the account, and also a petition alleging the marriage between herself and the decedent as aforesaid, after the making of said testamentary instruments, the domicile and death of Mr. Braithwaite, in Maryland, and the further fact that on May 9, 1882, on proper proceedings had before the register of wills of Talbot county, Md., letters of administration, with the will annexed, were duly issued to her in the state of Maryland on this decedent’s estate. She alleges that such will was not valid as to her and claimed to be entitled to a distributive share in her husband’s estate as if he had died intestate.

It appears from the proceedings before the two courts above mentioned, that the said will and codicil were duly admitted to probate in both jurisdictions.

The time within which to ask for a revocation of such probate has long passed.

That the will was valid to pass all the testator’s property under the laws of the state of New York there can be no question. It was also valid as a will of personal property under the laws of Maryland and entitled thereto to probate as such. Plater v. Groome, 3 Md., 134 ; Devecmon v. Devecmon, 43 id., 335; Byers v. Hoppe, 61 id., 207; 48 Am. Rep., 89 .

The real question here, therefore, is what law controls the distribution of the personal property now in the hands of this petitioner, the law of New York, or the law of Maryland.

The former permits a testator to dispose of his entire personal estate to persons outside of his own family, and marriage without issue does not revoke a will previously made.

In the state of Maryland the comon law doctrine of reasonable parts is still in force, and the widow of a man who dies, leaving a will in which she is unprovided for, takes one-third of his personal estate, after payment of debts, if children survive the testator; and one-half thereof, in case there are no children. Griffith v. Griffith, 4 Harris & McHenry, 101; Coomes v. Clement, 4 H. & J., 480 ; HoKamp v. Hagaman, 36 Md., 511 -518.

It is well settled in the law that personal property has no locality, but follows the person of its owner; and that the law of a decedent’s domicile controls in the distribution of his personal estate, without regard to its actual situation Parsons v. Lyman, 20 N. Y , 103 -112; Chamberlain v Chamberlain, 43 id., 433; Despard v. Churchill, 53 id 199; Matter of Hughes, 95 id., 60.

It seems clear to me, therefore, that the widow of this decedent is entitled to have the distribution of this personal

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property, so far as her rights therein are concerned, made according to the laws of the state of Maryland, and to receive such share thereof, as the said laws assign to her. It-further remains to decide whether the assets remaining in the hands of the administrator, after deducting commissions and allowances, shall be transmitted to Maryland to be distributed by the court there having jurisdiction, or shall be-distributed here, due regard being had to the laws of Maryland in such distribution.

It was said by the court of appeals, in the Matter of Hughes ( 95 N. Y., 55 ), that “when there are two administrators of an estate, one in the place of the domicile of the testator or intestate, and the other in a foreign jurisdiction, whether the courts of the latter will decree distribution of the assets * * * or remit them to the jurisdiction of the domicile is a question, not of jurisdiction, but of judicial discretion, depending upon the circumstances of the particular case.”

To the same effect are Despard v. Churchill ( 53 N. Y., 192 ), and Harvey v. Richards (1 Mason, 381).

In the present case the parties all reside in this state except the widow; there are no debts to be paid in either state, and the Maryland administrator, this contestant, is. not at present in Maryland, as appears from the verification of her answer herein.

I think, therefore, that it will be for the convenience of parties, and a saving of expense, to have the distribution-made here and and accordingly so direct.

The widow must take one-third of the net personal estate, and the remainder must be distributed according to-the terms of the will.

On the argument it was conceded that the widow was entitled to 150, under the New York Statute, nothing having been set off to her by the appraisers, when the inventory was made here. Since, however, her rights depend on the laws of Maryland and not of New York, and no statute-- or decision of the former state, having been brought to my notice, giving her anything in addition to her “reasonable parts,” I therefore hold that she is not entitled to the said §150 allowance under our statute,

All former objections to the widow’s right to intervene in this proceedings are overruled, and the objections to the account interposed by the contestants may be disposed of on the further hearing, which may be brought on after three days notice.