CIVIL PROCEDURE REPORTS.

M. TEMPLE TAYLOR, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF ELIZA KENNER, DECEASED, RESPONDENT, v. FREDERICK J. SYME, APPELLANT, IMPLEADED, ET AL.

NEW YORK COURT OF APPEALS, APRIL TERM, 1900.

S$ 2695, 2698, 2700, 2704.

Ancillary letters testamentary-Construction section 2695, code civil procedure-Disability of foreign executor to sue.

Ancillary letters testamentary issued in New York, ostensibly under section 2695 of the Code of Civil Procedure, upon the record of the probate of a will of personal property in Louisiana, the testatrix having resided at the time of the execution of the will and having had her domicile at the time of her death in Alabama, in which latter State the will was executed, Held void. The fact that the petition upon which the application for the ancillary letters incorrectly stated that the will was executed in the State of Louisiana, where it was probated, was ineffectual to confer jurisdiction upon the New York Surrogate, the transcript of the record upon the application for the ancillary letters in New York, showing that the will was executed in Alabama.

The person to whom the original letters testamentary were issued in Louisiana and to whom ancillary letters were attempted to be issued in New York, has not capacity to sue in the courts of New York, the rule being that a foreign executor or administrator cannot sue as such in this State, and, moreover, the form of the administration in Louisiana, of the estates of non-residents not pur

M. Temple Taylor v. Frederick J. Syme.

porting to be universal but to cover only the administration in that State, in like manner as the ancillary administration sought in New York.

(Decided April 17, 1900.)

Appeal from a judgment of the Appellate Division, First Department, affirming a judgment for the plaintiff cntered upon a verdict directed by the Supreme Court Trial Term, and denying the defendant's motion for a new trial.

Edward F. Brown, for appellant.

Erastus D. Benedict, for respondent.

LANDON, J.-This action was commenced by Eliza Kenner, September 3, 1900, against the defendant Syme, upon two promissory notes made December 21, 1892, in New Orleans, Louisiana, each for $1,500, by Allen and Syne, copartners, then residents in New Orleans, to their own order, one payable August 1, 1885, and the other Scptember 1, 1885, and indorsed by the makers to Eliza Kenner, who then resided and continued to reside until her death in Mobile, Alabama. The notes were the last of a ceries given in payment of the rent of a rice plantation in Louisiana, which Mrs. Kenner, at the time of their date, leased to Allen and Syme for three years ending December 31, 1885. The lease contained a provision that if the lessees should be deprived of the use of the premises by and through any causes beyond their control, or any fortuitous event, they should be allowed a reduction of the amount protanto.

Allen and Syme entered into possession of the premises, and at the end of two years failed, and their creditors took possession of their movable property on the plantation, with the result that they did not operate the plantation the third year. We agree with the courts below that Allen and Syme must be held to have brought this misfortune upon

M. Temple Taylor v. Frederick J. Syme.

themselves by their own improvidence, and that it could not be properly called a "fortuitous event," which the Civil Code of Louisiana defines as "that which happens by a cause which we cannot resist."

Eliza Kenner died in the State of Virginia in July, 1891, but her domicile was in Mobile, in the State of Alabama. This action was revived in the name of the present plaintiff in October, 1896, ancillary letters testamentary having in September, 1896, been issued by him by the Surrogate of the County of New York. The defendant, by his answer and upon the trial, challenged the jurisdiction of the Surrogate of the County of New York to issue the ancillary letters, the ground of the challenge being that such letters were issued upon the record of the probate of Mrs. Kenner's will, and of the issue of letters testamentary thereon by a court in the State of Louisiana, where she did not live, where she did not die, and where ier will was not executed, instead of by a court in the State of Alabama, in which she was domiciled at the time of her death, and in which she executed her will.

Section 2695 of the Code of Civil Procedure limits the power of the Surrogate to grant ancillary letters upon a foreign probate in the case of a will of personal property made by a person who resided in some other State or Territory of the Union at the time of the execution thereof, or at the time of his death, to the case of probate in the State or Territory where the will was executed, or the testator resided at the time of his death.

In August, 1896, the present plaintiff, M. Temple Taylor, by his attorney, presented a petition to the Surrogate of the County of New York for ancillary letters, testamentary, ostensibly under Section 2695 of the Code of Civil Procedure. The petition stated correctly the facts, except that it stated that the will was executed in Louisiana, which was not true. Accompanying the petition was a duly certified transcript of the record of the probate of the will in the court of Louisiana, and of letters

M. Temple Taylor v. Frederick J. Syme.

testamentary issued to the plaintiff, with a copy of the will, and proofs including a statement of the testimony of the subscribing witnesses, substantially as required by Sections 2695, 2698, 2704. From this transcript it distinctly appeared that the will of Mrs. Kenner was executed in the State of Alabama, and that she resided in that State at the time of her death, that is, had her domicile there. It thereby appeared that the case was not one in which the Surrogate had jurisdiction to issue ancillary letters upon the transcript of the record of the probate and proceedings produced before him from the court in Louisiana. The Surrogate was probably diverted from examining the record before him by the statement in the petition that the will was executed in Louisiana. But the office of the petition was to institute the proceeding and bring the Louisiana record into Court for examination by the Surrogate. Manifestly, if the petition contradicted the record upon a jurisdictional fact, the record would prevail, since one of the purposes of the provisions of the Code of Civil Procedure in this behalf is to give full faith and credit in proper cases to judicial proceedings of a sister State. No mistake in the petition would create the record of a probate in Alabama or change the facts presented by the Louisiana record that the testatrix executed her will in Alabama and was domiciled there at her death. The record showed that the Surrogate had no jurisdiction (Riggs v. Craff, 89 N. Y., 479; Matter of Hawley, 104 N. Y., 250; Morrow v. Freeman, 61 N. Y., 515. Matter of Catholic Protectory, 77 N. Y., 342).

It is suggested that, however, this may be, the plaintiff was duly appointed executor in Louisiana, and thus became the owner of the assets of the deceased. This position would have more force if Louisiana had been the domicile of the testatrix, since the law of the domicile governs the succession of personal property. The rule still remains that a foreign executor or administrator cannot sue as such in this State, although in cases where there