In re the Probate of the Will of Heller-Baghero

Capozzoli, J. On October 28, 1968, subsequent to the time when the will of the decedent, dated July, 1962, was offered for probate in the Austrian court, this proceeding was begun in the Surrogate’s Court of New York County for the probate of a later will of the same decedent, which was dated February 5, 1964. This last will was executed here in New York, and recites the fact that the decedent is a resident here and names a New York resident as residuary legatee of one half of the estate. The objections to the probate proceedings in the Surrogate’s Court are based on the allegations of the residence of the testator, at the time of his death in Austria, and the probate of the 1962 will in the Austrian court, which allegedly has domiciliary jurisdiction over the estate. It is important to note that 90% of the decedent’s assets are located within the County of New, York. This fact is not contradicted. The learned Surrogate was correct in holding that subdivision 2 of section 1605 of the Surrogate’s Court Procedure Act does not apply in this case because that section speaks of a will admitted to probate or established in the testator’s domicile. We are not considering the earlier will of 1962. The will which is before us is the later will of 1964. The dissenting opinion’s reliance on SCPA 206 has been noted; however, the case at bar is not affected by that section one way or the other, in view of the peculiar factual situation presented. The issue appears to be one of comity, rather than jurisdiction. It is, of course, true that the pending proceedings in Austria, involving an earlier will, should be considered as a factor in evaluating the exercise of the Surrogate’s Court’s discretion to entertain jurisdiction in this case. But, as against this one allegation, there are many other factors which lead to the conclusion that the learned Surrogate properly exercised his discretion in favor of retaining jurisdiction. The factors which favor the result reached include the making of the will in New York; the New York residency of a substantial legatee under the will; the statement in the will that the testator is a resident of New York State; the location of over 90% of the [330] property of the decedent in New York County and the undenied allegation that the interest of the New York legatee would be adversely affected by probate in Austria. In the case of Matter of Lamborn (168 Misc. 504, affd. 255 App. Div. 755, affd. 280 N. Y. 504), while the court (Foley, S.) dismissed a proceeding for the probate of a will, it concluded that the court had ‘ ‘ unquestionable * * * discretion ’ ’ (p. 510) in these proceedings. The court stated at page 509 as follows: “ In the exercise or non-exercise of discretion to entertain a probate proceeding of the will of a non-resident, the surrogates are guided by the circumstances of each case, by the relative rights of the parties in interest * * * and other distinctive considerations.” In view of the totality of the facts, as set forth above, I am of the opinion that the rule óf comity does not require that the Surrogate’s Court of New York County relinquish jurisdiction in this matter. Order directing that objections filed by appellants in'this proceeding be stricken should be affirmed, with costs to all parties filing briefs hereon payable out of the estate.