Finch, J.
William T. Alford, as domiciliary administrator of the estate of Katharyn Oglesby Cornell by appointment of the Probate Court of Jackson county, Missouri, was denied a motion by a decree of the Surrogate’s Court of New York county, in which motion the State of Missouri intervened “ for the purpose of protecting the inheritance tax due the state,” to have set down for trial in New York the issue of whether decedent died domiciled in the State of Missouri (on the ground that the decedent died intestate a resident of that State), or in the State of California (where the will of decedent was
probated, and letters testamentary issued to appellant Cornell, on the ground that decedent died a resident of that State leaving a valid will). There is no contention that the decedent ever resided within the State of New York, and New York State is making no claim to prior right of administration or to taxes. Decedent left about $65,000 in the State of New York.
The Appellate Division, two justices dissenting, reversed this decree and remitted the matter for a hearing by the Surrogate so
“
that recognition must be accorded to whichever decree is entitled to be recognized, as disclosed by the facts on which its validity depends.” (242 App. Div. 562, 565.)
Decedent died June 4, 1933, in Kansas City, Missouri. She had been judicially separated from her husband, who continued to reside in California. Decedent left a will. This will was executed in the State of Oklahoma. Immediately following her death the Public Administrator, acting for the State of Missouri in the territory comprising Kansas City, procured letters of administration to be issued to him and shortly thereafter presented an application to the Surrogate’s Court, New York county, upon which ancillary letters of administration were issued to him. He thereupon demanded possession of such property of decedent as was in the custody of a banking institution in New York county. Upon being advised of this demand, the executor named in the will of decedent, who had in the meantime initiated probate proceedings in the State of California, applied to the Surrogate’s Court of New York county for an order suspending the powers of the ancillary administrator. This suspension was granted, pending completion of the probate proceedings in the State of California. These proceedings resulted in the due probate of the will. Following such probate, the executor filed in the Surrogate’s Court an authenticated copy of the will, the decree admitting it to probate and letters testamentary. He thereupon procured a decree which terminated the powers of the ancillary
administrator and directed the issuance of ancillary letters testamentary to him as executor. The ancillary administrator then applied to the Surrogate’s Court to vacate the decree granting ancillary letters testamentary. Upon that application the State of Missouri, through the Attorney-General of the State, procured leave to intervene and joined in the application. The sole issue raised by the papers in the Surrogate’s Court was oné of actual domicile or residence of decedent at the time of her death. There is no attack made upon the will of decedent as an effective will. The Surrogate’s Court held that, in view of the lack of denial that decedent left a will appointing an executor, the Public Administrator acting for the State of Missouri was no longer an interested party in this jurisdiction and that, so far as the State of Missouri was concerned, though the Surrogate’s Court had the power to make the inquiry, nevertheless, in the interest of comity between States and of the proper administration of the assets ■under the circumstances disclosed in this record, the State of New York should remain indifferent and decline to exercise jurisdiction. As already noted, the Appellate Division, with two dissents, reversed that decision and directed the trial of the issue.
Upon this record, the State of New York may, in its discretion, decline to make the inquiry and remit the local assets to the foreign executor, to be dealt with by him as the courts of his jurisdiction decide. The party seeking the inquiry may apply in the State in which the original probate was granted and there obtain if warranted the relief which is sought here. New York State has no interest in the issue, either because of a claim for taxes or to prior right of administration or otherwise, no contention being made that the decedent died domiciled or was ever domiciled in this State.
That the Surrogate’s Court of New York county has jurisdiction over the New York estate of this non-resident decedent admits of no doubt. The issue is whether the Surrogate’s Court in the case of a decedent who con
cededly is not a resident of this State, must conduct an inquiry into the actual residence of decedent, to determine whether or not a court of another State had jurisdiction to admit the will to probate. Although the decree of the State of original probate is not conclusive on the question of domicile or residence
(Taylor
v.
Syme,
162 N. Y. 513;
Baldwin
v.
Rice,
183 N. Y. 55;
Matter of Connell,
221 N. Y. 190), the Surrogate’s Court of New York county, in issuing ancillary letters testamentary (Surr. Ct. Act, § 159) may rely on the decree of another State as presumptively establishing residence there. Moreover, in the case at bar we have an additional fact, negativing the exercise of jurisdiction, in that the request is made by a domiciliary administrator who has no interest in the estate if, in fact, the decedent disposed of her property by will.
Every person interested in the property of decedent in this State, except a legatee who was given $1,000 under the will, is a non-resident of the State of New York. All witnesses who can testify on the issue of domicile apparently are non-residents of this State. There are no creditors here. The executor does not reside here, nor does the alleged administrator. No reason appears why the trial should be here, except that the non-resident respondents for some reason not made known prefer not to try out the issue in another jurisdiction.
It appears that this decedent maintained with her husband a residence in California and only left that State after the judicial separation. Hence, the California domicile would continue unless decedent had acquired a new domicile in the State of Missouri.
The trial of the issue of domicile in New York will be binding only in the State of New York.
(Overby
v.
Gordon,
177 U. S. 214;
Thormann
v.
Frame,
176 U. S. 350.) (See
Wedemann
v.
U. S. Trust Co.,
258 N. Y. 315, at p. 320;
Helme
v.
Buckelew,
229 N. Y. 363.)
Moreover, the determination of this issue of domicile will leave untouched the question whether or not this
non-resident decedent disposed of her property by will. Respondent does not contest the validity of this will.
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Finch, J.
William T. Alford, as domiciliary administrator of the estate of Katharyn Oglesby Cornell by appointment of the Probate Court of Jackson county, Missouri, was denied a motion by a decree of the Surrogate’s Court of New York county, in which motion the State of Missouri intervened “ for the purpose of protecting the inheritance tax due the state,” to have set down for trial in New York the issue of whether decedent died domiciled in the State of Missouri (on the ground that the decedent died intestate a resident of that State), or in the State of California (where the will of decedent was
probated, and letters testamentary issued to appellant Cornell, on the ground that decedent died a resident of that State leaving a valid will). There is no contention that the decedent ever resided within the State of New York, and New York State is making no claim to prior right of administration or to taxes. Decedent left about $65,000 in the State of New York.
The Appellate Division, two justices dissenting, reversed this decree and remitted the matter for a hearing by the Surrogate so
“
that recognition must be accorded to whichever decree is entitled to be recognized, as disclosed by the facts on which its validity depends.” (242 App. Div. 562, 565.)
Decedent died June 4, 1933, in Kansas City, Missouri. She had been judicially separated from her husband, who continued to reside in California. Decedent left a will. This will was executed in the State of Oklahoma. Immediately following her death the Public Administrator, acting for the State of Missouri in the territory comprising Kansas City, procured letters of administration to be issued to him and shortly thereafter presented an application to the Surrogate’s Court, New York county, upon which ancillary letters of administration were issued to him. He thereupon demanded possession of such property of decedent as was in the custody of a banking institution in New York county. Upon being advised of this demand, the executor named in the will of decedent, who had in the meantime initiated probate proceedings in the State of California, applied to the Surrogate’s Court of New York county for an order suspending the powers of the ancillary administrator. This suspension was granted, pending completion of the probate proceedings in the State of California. These proceedings resulted in the due probate of the will. Following such probate, the executor filed in the Surrogate’s Court an authenticated copy of the will, the decree admitting it to probate and letters testamentary. He thereupon procured a decree which terminated the powers of the ancillary
administrator and directed the issuance of ancillary letters testamentary to him as executor. The ancillary administrator then applied to the Surrogate’s Court to vacate the decree granting ancillary letters testamentary. Upon that application the State of Missouri, through the Attorney-General of the State, procured leave to intervene and joined in the application. The sole issue raised by the papers in the Surrogate’s Court was oné of actual domicile or residence of decedent at the time of her death. There is no attack made upon the will of decedent as an effective will. The Surrogate’s Court held that, in view of the lack of denial that decedent left a will appointing an executor, the Public Administrator acting for the State of Missouri was no longer an interested party in this jurisdiction and that, so far as the State of Missouri was concerned, though the Surrogate’s Court had the power to make the inquiry, nevertheless, in the interest of comity between States and of the proper administration of the assets ■under the circumstances disclosed in this record, the State of New York should remain indifferent and decline to exercise jurisdiction. As already noted, the Appellate Division, with two dissents, reversed that decision and directed the trial of the issue.
Upon this record, the State of New York may, in its discretion, decline to make the inquiry and remit the local assets to the foreign executor, to be dealt with by him as the courts of his jurisdiction decide. The party seeking the inquiry may apply in the State in which the original probate was granted and there obtain if warranted the relief which is sought here. New York State has no interest in the issue, either because of a claim for taxes or to prior right of administration or otherwise, no contention being made that the decedent died domiciled or was ever domiciled in this State.
That the Surrogate’s Court of New York county has jurisdiction over the New York estate of this non-resident decedent admits of no doubt. The issue is whether the Surrogate’s Court in the case of a decedent who con
cededly is not a resident of this State, must conduct an inquiry into the actual residence of decedent, to determine whether or not a court of another State had jurisdiction to admit the will to probate. Although the decree of the State of original probate is not conclusive on the question of domicile or residence
(Taylor
v.
Syme,
162 N. Y. 513;
Baldwin
v.
Rice,
183 N. Y. 55;
Matter of Connell,
221 N. Y. 190), the Surrogate’s Court of New York county, in issuing ancillary letters testamentary (Surr. Ct. Act, § 159) may rely on the decree of another State as presumptively establishing residence there. Moreover, in the case at bar we have an additional fact, negativing the exercise of jurisdiction, in that the request is made by a domiciliary administrator who has no interest in the estate if, in fact, the decedent disposed of her property by will.
Every person interested in the property of decedent in this State, except a legatee who was given $1,000 under the will, is a non-resident of the State of New York. All witnesses who can testify on the issue of domicile apparently are non-residents of this State. There are no creditors here. The executor does not reside here, nor does the alleged administrator. No reason appears why the trial should be here, except that the non-resident respondents for some reason not made known prefer not to try out the issue in another jurisdiction.
It appears that this decedent maintained with her husband a residence in California and only left that State after the judicial separation. Hence, the California domicile would continue unless decedent had acquired a new domicile in the State of Missouri.
The trial of the issue of domicile in New York will be binding only in the State of New York.
(Overby
v.
Gordon,
177 U. S. 214;
Thormann
v.
Frame,
176 U. S. 350.) (See
Wedemann
v.
U. S. Trust Co.,
258 N. Y. 315, at p. 320;
Helme
v.
Buckelew,
229 N. Y. 363.)
Moreover, the determination of this issue of domicile will leave untouched the question whether or not this
non-resident decedent disposed of her property by will. Respondent does not contest the validity of this will. In consequence, respondent has no interest whatever in the property, because the title vested in the executor named in the will as of the instant of death. He derived his title and his rights from the will itself, not from the decree of any court.
(Matter of Shonts,
109 Misc. Rep. 276; affd., 229 N. Y. 374.) In fact, it appears that the domiciliary administrator has called on this executor to offer for probate this will in the Probate Court of Jackson county, Missouri.
Whether the New York assets of this non-resident estate are administered by the executor under the ancillary letters testamentary, which are at present issued and outstanding, or under original letters testamentary, which this executor will be entitled to in case decedent left a valid will not probated elsewhere (Surr. Ct. Act, § 45;
Matter of Connell,
221 N. Y. 190), is not very important to this estate or to those interested in it. What is of great importance, however, both to this estate and to its beneficiaries, is to avoid having the assets in New York dissipated by the expense of futile investigations and trials and by the payment of commissions and fees incurred therein.
Furthermore, if the Surrogate’s Court of New York county does not rely on the decree of another State as presumptively establishing the residence there, or at least establishing the fact that decedent left a valid will, why could not every other State likewise disregard comity and compel those interested in an estate where the will has been validly probated here to journey to a foreign State and there defend a contest of the validity of the probate here, with no certain result except the dissipation of assets in fees and commissions?
Respondent urges that the provisions of the Surrogate’s Court Act (§§ 159 and 160) make it mandatory upon the Surrogate’s Court here to have a trial of this issue. These
sections, however, only make it mandatory upon the Surrogate’s Court to issue ancillary letters in due course, and do not touch the question as to whether the Surrogate’s Court should be required to have a trial or, in its discretion, refuse such inquiry in the circumstances set forth in this record.
It follows, therefore, that in the estate of a deceased person who concededly was not a resident of this State and concerning whose estate this State makes no claim of prior right of administration, our courts are not required to conduct an inquiry into the question of domicile of decedent and establish whether or not a sister State had jurisdiction to admit the will to probate. Especially is this so when the Surrogate’s Court of New York county is requested to make the inquiry solely by a foreign administrator who has no interest which the courts of this State are required to recognize. In such case, the courts of New York State have the discretion to decline to make the inquiry.
It follows that the order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs to the appellant in all courts.
The second and third questions certified should be answered in the negative. We deem it unnecessary to answer the first question.