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Surrogate's Court, Madison County, January, 1918. [Vol. 102.

probated here and the will as probated in Michigan grows out of the provisions for the support, care and maintenance of George Albert Storms, the mute brother of the testatrix. In this regard the will is as follows:

"Sixth. I give and bequeath to my sister, Susan C. Storms, during the term of her natural life, from the income of my estate, one hundred dollars per month, provided and on condition that she cares for and makes a home for my mute brother George Albert Storms during his lifetime.

"Seventh. Should my sister Susan C. Storms die before my brother George Albert Storms, then and in that case I hereby direct my said executor to pay to my sister Leah Catherine Kersey, from the income of my estate the sum of fifty dollars per month for caring for and making a home for my said brother, George Albert Storms, during his lifetime, and in case said George Albert Storms should survive both Susan C. Storms and Leah Catherine Kersey, then my said executor is hereby authorized and directed to make other suitable and sufficient arrangements for such care and home and to pay for the same.

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Between the making of the will and codicil conditions had changed, among other things that Susan C. Storms had become Susan C. Higgins by marriage. The codicil contained the following:

"Whereas my brother George Albert Storms is unable to care for himself through physical defects and infirmities, it is my wish that my sister Genevieve S. Jacobs and her husband Nathaniel P. Jacobs do so care for him and make his home with them during the term of his natural life and that they shall receive the sum of seventy-five dollars ($75) per month compensation during that time. In the event of his death before that of Genevieve S. Jacobs or Susan S. Hig

Misc.] Surrogate's Court, Madison County, January, 1918.

gins I direct that they shall share alike with the other heirs in the general and final distribution of my estate."

It can readily be seen that the change made in the codicil not only affected the rights of Mrs. StormsHiggins and Mrs. Jacobs and her husband but, as a necessary consequence, the rights of all the residuary legatees. It also had an important bearing on the status and rights of the mute brother, although his maintenance is evidently provided for under almost any contingency. Thus it will be seen that much depends on the determination as to which of the two conflicting administrations is to be considered and held to be the principal or prevailing administration and which is ancillary or secondary, because the will considered by itself is in conflict with the will and codicil.

I find that this question of precedence or dominance has already been determined by court decrees and holdings that are conclusive upon this court and the parties concerned.

After the probate in Michigan the Michigan administrator, and later Mrs. Higgins, brought suit in the United States Circuit Court to endeavor to establish that the Michigan decree of probate took precedence over the Madison county decree. Mrs. Higgins' suit had an interesting career of ups and downs but at last it was decreed by the United States Circuit Court of Appeals, reversing the Circuit Court, that the Madison county decree of probate and granting letters took precedence over the Michigan decree so far as concerns property in New York; also that the codicil superseded and did away with the sixth clause of the will. Application to be permitted to take the case to the United States Supreme Court to have this

Surrogate's Court, Madison County, January, 1918. [Vol. 102.

determination reviewed was denied and the adjudication became final.

In the United States Circuit Court Mrs. Higgins had succeeded in procuring a decree that the Michigan decree of probate took precedence and that she was entitled to her legacy of $100 a month. This is the decree that was reversed by the United States Circuit Court of Appeals, as stated. Before her decree was reversed she instituted a proceeding in the Madison county Surrogate's Court (the United States court having no power to enforce its decree) to recover her legacy of $100 a month and for a determination that the Michigan decree had precedence over that in New York. Judge Kiley, in a very exhaustive review of the law and facts, refused to hold that the Michigan decree had precedence, but granted her petition to have her legacy under the sixth clause of the will paid to her, but subject to the condition that the decree of the United States Circuit Court be in this respect affirmed. But the decree was reversed, as above set forth.

An appeal from the surrogate's decision to the Appellate Division of the Supreme Court resulted in a unanimous affirmance.

In Matter of Eaton, 159 App. Div. 7, the court reciting the foregoing facts, among other things, said: "It is conceded by all parties concerned herein that the United States courts had jurisdiction to hear and determine the suit concerning this subject-matter. Having jurisdiction and having made an adjudication their determination is beyond all doubt res adjudicata. Whatever they determined is the law, binding upon this court, binding upon all the litigants, surely binding upon Mrs. Higgins who chose the forum. To hold otherwise would be to make all the proceedings in the United States courts a nullity. And the situation here is doubly res adjudicata. Mrs.

Misc.] Surrogate's Court, Madison County, January, 1918.

Higgins contested the probate of the will before the Madison County Surrogate's Court and she was beaten; but she did not appeal. This determination, therefore, became final and binding upon her and upon everybody, and nothing determined there can be reviewed here. It is unnecessary to cite authorities to sustain this proposition; the law is well known.

"Believing as we do that the doctrine of res adjudi cata is controlling on this controversy, we think it unnecessary to discuss any of the other points presented, for whatever views we may entertain concerning the comity of nations,' primary and ancillary probate proceedings, the precedence or otherwise of the domiciliary court over the Madison County Surrogate's Court, or the effect of the codicil upon the 6th clause of the will, are of no moment now. If the questions presented have been litigated and decided in courts having jurisdiction, that is the end of it."

That would seem to be final as far as the precedence of the New York decree over that in Michigan is concerned. If it was doubly res adjudicata in the Appellate Division, it is now trebly so, for their decision is now that of this court.

It follows that so far as property in this state is concerned the will with the codicil is the real will of Elizabeth S. Eaton, deceased, and not the will without the codicil under which petitioner now seeks ancillary letters in this state.

How, asks counsel, can the surrogate refuse ancillary letters to the petitioner in the face of the plain language of section 2629 of the Code of Civil Procedure?

I do not think the framers of the Code contemplated a case like this. It is an anomalous situation. Ancillary letters would be inconsistent with and a contradiction of the will and codicil in force in this state. If not, they would mean nothing. The New York decree

Surrogate's Court, New York County, January, 1918. [Vol. 102.

having precedence, no property in this state would be administered under the ancillary letters and thus the very purpose for which such letters are granted would fail. There are no debts of the estate unpaid in this state, and, if there were, they would be provided for under the principal administration now in force in this state. To grant them (ancillary letters) might conform to the letter of the Code but it would violate its spirit and be an idle ceremony.

It would, indeed, be worse than that, for it would violate the legal adjudications made in regard to this very estate. Ancillary letters pre-suppose something which, in this case, does not exist, viz.: a superior or dominant administration in some other state.

The application for ancillary letters must, therefore, be denied and a decree may be entered accordingly. Application denied.

Matter of the Transfer Tax upon the Estate of ALICE DEAN WARD CHAUNCEY, Deceased.

(Surrogate's Court, New York County, January, 1918.)

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By the will of decedent's father, probated before the date when property passing under a power of appointment was subject to a transfer tax, his residuary estate was divided into four parts one of which was given to the decedent herein, his daughter, for life with power to appoint the same by her own last will and testament and in the event of her failure to so appoint the remainder interest in her share was given by her father's will to the children of his two sons, named, and to the issue of any such grandchildren per stirpes. Seven grandchildren of the testator survived him and the decedent herein, and she by her last will and testament appointed one-seventh to Z, one of said grandchildren, giving her also a large pecuniary legacy, one-seventh to T, another of said grandchildren, and the remaining five-sevenths to persons other than the seven

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