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Court Hears Validation Proceeding for Deceased Priest’s Will


A validation proceeding for the will of a deceased priest have two questions presented for determination. The matters to be determined are the right of the respondent to attack the jurisdiction of the Court and the finding of the residence of the deceased at the time of his death.

The Petition for Probate was filed together with an original will of the deceased. Two days prior to the filing, an order to search the safe deposit box of the deceased in a savings bank in New York was signed by the Monroe County Surrogate based upon a petition stating that the deceased had died a resident of the Rochester City New York. The safe deposit box was searched and a will identical to the one filed in Ontario County Court was found it was filed in the Surrogate’s Office of Monroe County Court by an officer of the said bank.

A New York Lawyer said that on the return day of the Citation, a Notice of Retainer and Appearance was filed by an attorney acting for the respondent who is a sister of the deceased. He advised the Court of the existence of what seemed to be a duplicate original will on file in the Monroe County Surrogate’s Office. The matter was adjourned until December 3, 1962, during which period of time the Court personally went to the Monroe County Surrogate’s Office and examined the application for the opening of the safe deposit box and the will which had been filed there as a result of such search. On December 3, 1962, a short hearing was held in the matter. The Court advised the respective attorneys that it had examined the file in Monroe County Surrogate’s Court. The attorney for the respondent requested an adjournment for two weeks with the understanding that he would file an answer with the Court and a copy with opposing counsel by December 10th and that the issues be raised by the answer and should be tried on December 17, 1962. On December 10th, respondent’s attorney filed an answer.
It is the respondent’s contention that the Court lacks jurisdiction for the validation of the will on the grounds that the deceased died a resident of Monroe County rather than Ontario County, and throughout the proceedings her attorney has denied the Court’s jurisdiction even though the respondent’s attorney originally filed the said notice of retainer and appearance. On the contrary, it is contended by the proponent of the will that the respondent is precluded from attacking the jurisdiction of the Court because of the general appearance and the answer to the petition for validation.

It is clear that the objecting respondent, from remarks made by her counsel in the open Court from the outset of the proceeding together with the opening statement made in the answer filed intended at all times, a special appearance to object to jurisdiction shall deny the motion made by the proponent’s attorney at the hearing to dismiss the answer and to proceed with the validation of the will as filed.

The court is not unmindful of the existence of a section in the Surrogate’s Court Act which states that a 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. Brooklyn Probate Lawyers said that since the Monroe County Surrogate’s Court accepted jurisdiction for the purpose of signing the order for the search of the safe deposit box two days prior to the filing of the petition for validation in the Court, it is argued that the Monroe County Court rather than Ontario County Court had obtained the exclusive jurisdiction.
The deceased was a Priest and in such capacity served as Pastor in Victor New York for approximately 25 years until he became Pastor Emeritus. As a Pastor, he occupied a room at the head of the stairs in the Rectory for many years and after becoming Pastor Emeritus he was furnished a different room where he resided. At times, he assisted the new Priest to officiate the Mass and continued to remain in Victor New York until he went to Watertown New York to visit friends. While still in Watertown, the Priest apparently suffered a stroke and was confined to the hospital in Watertown until he was transferred to a hospital in Rochester. He remained until he moved to his sister’s home in Maplewood Avenue, Rochester New York. The said sister is the same person as the respondent. He resided with his sister until his condition became such that it became necessary for him to enter a nursing home in Rochester New York, where he stayed until he was transferred to a hospital and died.

On January 17, 1962, the deceased priest executed a Power of Attorney to the respondent’s attorney. The letters were written by the attorney of the respondent advising the Rochester Hospital Service and the publishers of the Victor Herald of a change in the priest’s address to his sister’s address in Maplewood Avenue, Rochester New York. Bronx Probate Lawyers said that he testimony further reveals and is substantiated by the respondent’s exhibit that the deceased priest had made application to enter the nursing home in Rochester New York and that his name was placed on the waiting list during the month of February, 1962. The home was in the process of construction and was not opened until October 15, 1962. The last paragraph of said exhibit reads that the nursing home was already opened. The nursing home was opened on October 15, 1962, but the priest died on October 8, 1962 and was therefore not admitted.

Arrangements were made as the testimony reveals that the deceased priest definitely did not want to go to a nursing home at Hornell New York but desired to stay in Monroe County where his family and friends were. The testimony of the respondent, her husband, and of the respondent’s attorney were taken and revealed that the deceased priest requested everything to be taken out of his room at the rectory in Victor and be moved to his sister’s home in Maplewood Avenue in Rochester New York. The brother-in-law of the deceased priest made several trips to get the priest’s possessions including boxes stored in the basement, and upon one of the said trips, the deceased priest accompanied him. The facts further reveal that the deceased did not say Mass from the time that he was taken while in stroke until the time he died. Furthermore, the deceased did not want to go back to Victor unless he was able to function and perform his priestly duties and that the Bishop had made the decision that he could not get any housekeeper to stay in the rectory to look after him. The testimony also claims that the deceased priest’s eyesight was impaired because of his illness, and he could only write his name with difficulty. The respondent attorney’s testimony reveals that he made arrangements at the request of the deceased priest to remove him from the hospital and be taken to his sister’s home. The attorney recalls that during the deceased priest’s stay at his sister’s home, he had a separate room, he was given a bath and his meals were being furnished by the sister and the brother-in-law. The attorney testified that during the month of May in 1962, the deceased priest visited a doctor who told the deceased priest that there was no correctional method by which his eyesight could be improved. It appears that the deceased priest had been to the nursing home and liked it very much and felt that he would be better off at the nursing home rather than obliged his sister and burden her with his care.

Funeral services for the deceased priest were held at a Church in Victor New York but he was buried in a Sepulcher Cemetery in Monroe County.

The will of deceased recited that at his outset he was resident of Victor Ontario County, New York but his Power of Attorney recited that he was from the Village of Victor, County of Ontario, State of New York.

In order to acquire a new residency, there must be a union of residence and intention. A change of residence even for a short time with the intention of good faith to change the residence has an effect, but there must be a present, definite and honest purpose to give up the old and take up the new place as the residence of the person whose status is under consideration. A change of residence may be made for the purposes of health. The fact that the deceased priest stated in his will that he was from Victor, Ontario County, New York is not able to determine his residence at the time of death but is rather arguable.

It is argued by the attorney for the proponent that where there is a question of residence as between counties and not states and the answer rests largely on convenience of administration. The Court concluded that the validation proceedings must be brought in the Surrogate’s Court of the county of the deceased person’s residence since it has exclusive jurisdiction of the estate. Expediency, therefore, must be disregarded and the determination of the surrogate in each case must rest upon the facts and the pertinent law.

The proponent argues that removal of a person from his or her home to a hospital is insufficient to establish residence as used in the law. The removal with the help of and at the request of the deceased of all his possessions from the rectory in Victor, coupled with his application and apparent intent to enter the nursing home indicate an intention on his part to abandon his old residence and to take up a new residence in the City of Rochester, New York. The intention to take up a new residence in the nursing home as expressed by the filing of the application may be taken into account even though he never actually lived to physically enter the home.

The fact that the deceased was a Catholic Priest seemed relevant and might well set the case apart from the usual one. A Catholic Priest, being a celibate, has no immediate family. In fact, he had no close relatives maintaining a home in Victor to which he could return once he left the hospital. Surely, the mentioned fact coupled with all the sad circumstances of his illness and subsequent health decline, furnished strong reasons why he should determine to return from Victor, New York, and acquire Rochester, New York as his legal residence in his remaining years.

Submit order on notice accordingly sustaining the jurisdiction of Monroe County Surrogate’s Court and directing the transfer of the proceedings herein as well as the original will filed in this Court to the Monroe County Surrogate’s Court.

People move from one place to another due to varied reasons and the last place we were or where we stayed longer may not necessarily be our place of residence. If confusion of a family member’s residence arises in a last will, consult a skilled lawyer at Stephen Bilkis and Associates.

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