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Probate Court Decides Out of State Jurisdiction Issue


Two cases before two (2) courts involve the same or similar issues, that is, the jurisdictions of both courts in ruling upon the probate proceedings filed before it.

First Case:

A New York Probate Lawyer said that on 26 April 1954, the decedent was committed to a State Hospital. Thereafter or on 12 August 1954, a Supreme Court in Kings County issued an order finding decedent to be an incompetent person. This order recited that decedent was then a resident of Kings County, and appointed “A”, a resident of Huntington, Suffolk County, as committee of the person and property of the incompetent. On 29 March 1955, the decedent died while a patient in the State Hospital. Consequently, “A”, who continues to reside in Huntington, was named executrix in the will of the decedent. Following the death, a probate proceeding was then instituted with “A” as the petitioner in Suffolk County. Respondent, appearing specially, challenges the jurisdiction of the Court on the ground that decedent, at the time of his death, was a resident of Kings County.

A New York Will Lawyer said the question that the court must resolve is whether or not the decedent died a resident of Kings County or Suffolk County.

Here, the court finds that, upon the facts presented, the decedent died a resident of Kings County. Thus, respondent’s objection must be sustained, and the petition for probate must be dismissed.

Second Case:

Suffolk County Probate Lawyers said that on 2 October 1958, defendant’s brother filed before the Court of Sullivan County a petition for the probate of a will dated 9 May 1952, with the petitioner named as one of the executors thereof. The widow and daughter of decedent and one other person appear specially and object to the jurisdiction of the Surrogate’s Court of Sullivan County.

Nassau County Probate Lawyers said that here, it appears without question that letters of administration (for estate administration purposes) of the goods, chattels and credits which were of decedent were issued to the widow by the Surrogate’s Court of Kings County on 27 March 1958. As Section 44 of the Surrogate’s Court Act provide, among other things, that: jurisdiction, once duly exercised over any matter by a surrogate’s court, excludes the subsequent exercise of jurisdiction by another surrogate’s court over the same matter, and all its incidents. Clearly, orderly and sound procedure requires that the within proceeding in this court be adjourned to enable the proponent of the propounded instrument to apply to the Surrogate of Kings County to vacate the letters of administration there issued on the grounds that decedent was not a resident of Kings County at the time of his death, that decedent did not die intestate and on such other and further grounds as he may see fit to advance. While contrary reasoning can be found in the case of Matter of Mills’ Estate, the weight of authority indicates that the suggested course of action is the better practice and procedure. It might also be pointed out that it would appear that said application to vacate would not be barred on the principle of res adjudicata by virtue of the proceeding culminating in the decision dated 18 September 1958, because apparently there were different issues involved. Staten Island Probate Lawyers said it would appear also that there would be different parties.

In sum, the court finds that the proceeding must be adjourned without date, the same to be restored by any appearing party on notice of three days after determination of the suggested application in Kings County.

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