In re Schmid

Woodward, J.: Just what practical resultwould.be attained, in the event of a reversal of the decree appealed from, it is .difficult to understand; [707] the appellant does not suggest any, and in such a case the court is not called upon to be astnte in discovering a technical ground for reversal. The practical question has been litigated and the time for appeal has passed, and unless there is something to be gained of practical value it is hardly within the province of an appellate court to interfere with the decree of the court below. The facts are these: Henry Streckf uss died in Kings county leaving a last will, and testament, which was duly admitted to probate in the said county on the 28th day of October, 1903. Henry ITollmann duly qualified as executor under this will. Streclcfuss left a daughter, Louise Sprathoff, a resident of Germany, surviving him. This daughter took a legacy of $4,000 under the will. She died in Germany on the 23d of January, 1904. Her only next of kin were respondent, Johanna Ilg, a sister, living in the United States and now a resident of the State of New York, and a brother, Frederick Andreas Streckf uss,. living in Germany. After the death of Louise Sprathoff and on the 16th day of February, 1904, an administrator of her estate appears to have been appointed in Germany. This administrator, one Walther John, appears to have been a lawyer, not related to any of the parties, and the appointment ivas made without notice to the next of kin, and he filed no_security, conditions which would be necessary in the State of New York, and there is nothing before the court to show what the law of Germany is in respect to administration. Upon the basis of these German letters of administration on the 11th day of May, 1904, the appellant, Anton Schmid, applied for and obtained from the court below alleged ancillary letters of administration for the purpose of reducing to possession the $4,000 legacy to Louise Sprathoff, who concededly owed no debts within the State of New York. On the 22d day of June, 1905, Johanna Ilg, being then a resident of Kings county, applied to the Surrogate’s Court of that county for letters of administration, and such letters were duly granted, and slue qualified in due form of law as such administratrix. With the records of the court below showing this state of affairs, the executor under the will of Henry Strockfuss instituted proceedings for an accounting, and both these administrators laid claim to the legacy of $4,000. The matter appears to have been fully con [708] tested, resulting in a decree under date of August -24, 1905, awarding the fund to JTohanna J]g} as administratrix of Louise SprathofE, and no appeal has been taken from that decree, the time for which has long .since expired. After the entry of the decree above mentioned this proceeding was brought to revoke the letters'to Johanna Ilg, without taking any steps to avoid or limit the effect of the decree, on the ground of the prior letters to Anton Schmid, and upon a further ground, which appears to have been fully aban- . doned upon this' appeal and which it does not seem necessary to consider. In view of the conceded facts in this case, and the provisions of section 2664 of the Code of Civil Procedure, it is evident that it would be contrary to the policy of this State to permit the legacy to Louise Spratlioff to fall into the hands of the appellant, who has not given any surety bonds for the faithful discharge of his duties, and it seems to us that the appellant, by submitting to the determination of the court belpw in the matter of the accounting, has Waived all rights under his ancillary letters. In his petition he makes no suggestion that there is any estate within the jurisdiction of the court aside from the legacy of $4,000, and this sum having been awarded • to Johanna Ilg, as administratrix of the estate-of Louise Sprathoff, and the decree having become final by reason of the appellant having failed to appeal in the accounting proceeding, there is nothing to be determined in this court. The appointment of Johanna Ilg, after letters had been issued to the appellant, was not void,-nor was it without jurisdiction (Power v. Speckman, 126 N. Y. 354, 356, 357), and the question could not have been raised by the appellant on the accounting proceeding. (Power v. Speckman, supra.) The appellant could not go into that- proceeding and submit "his lights .under his ancillary letters and then, without appealing from the decree, defeat the rights of the respondent by an independent proceeding. The surrogate had all of the necessary parties before him upon the accounting, and the decree in that proceeding must be final until it is reversed or vacated in some manner recognized by our laws, and as the rights of the ancillary administrator depend entirely upon the legacy within the jurisdiction of this court, and as that legacy has been judicially decreed to belong to the administratrix, there is an end of the appellant’s rights under [709] his letters, whatever those rights might have been if he had remained away from the accounting proceedings, and had asked in advance of the accounting, or cotrtempoj^aneously with it, for the relief which he now seeks. The decree appealed from should be affirmed, with costs. Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred. Decree of the Surrogate’s Court of Kings county affirmed, with •costs. '