Lecouturier v. Ickelheimer

WARD, Circuit Judge. [1] I have no doubt of the jurisdiction of the court to entertain this bill. Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Waterman v. Bank, 215 U. S. 33, 30 Sup. Ct. 10, 54 L. Ed. 80; Hayes v. Pratt, 147 U. S. 557, 13 Sup. Ct. 503, 37 L. Ed. 279; Supreme Court rule in-equity 39 (29 Sup. Ct. xxix). [2] The French letters of administration are not authenticated in accordance with the requirements of section 45 of the Decedent’s Estate Law (Consol. Laws N. Y. 1909, c. 13), so as to qualify the complainant to sue under section 1836a, Code of Civil Procedure; but this is a ground for staying the suit, and not for dismissing the bill. [3] The principal question is as to the effect of the decision of the Circuit Court of Appeals for this Circuit in Higgins v. Eaton, 202 Fed. 75. That decision holds, as I understand it, that the will of one domiciled elsewhere, though invalid there, because improperly exe [683] cuted, may be probated in this slate, if executed in accordance with our law, and property in this state may be distributed under it. But it was especially noted that no decision was made as to what property of the decedent was in New York. I understand that a demurrer to this bill was argued before Judge Noyes, who was of opinion that the bill should he dismissed, but gav§ the complainant opportunity to amend. It is tlie amended bill that the defendants now move to dismiss. The amendment shows that the assets of the decedent in the state of New York consisted almost entirely of the stock and bonds of corporations of other states. This fact raises a question not considered by Judge Noyes, viz.: Are such dioses in action, because physically here, property within the state, so as to be distributable under the decedent’s will duly probated here? Every sovereign may, of course, by statute alter the principle of law expressed in the maxim, “Mobilia personam sequuntur;” but there is nothing to show, certainly before chapter 244, Laws of 1911, that the Legislature of this state ever intended to alter that principle in respect to the distribution of a decedent’s assets. The domicile of the decedent in this case having been in France, the probate of the will here was in the nature of tilings ancillary. The decision in Higgins v. Eaton makes the will effective as to assets within this state; but I do not think that the physical presence here of certificates of slock and of bonds of corporations of other states belonging To the decedent brings them within the jurisdiction of the New York courts for the purpose of distribution according to the law of New York. Lockwood v. U. S. Steel Co., 153 App. Div. 655, 138 N. Y. Supp. 725. If, because the New York executor has reduced these dioses in action into possession, the New York courts may distribute them, still I think the distribution must be in accordance with the law of the decedent’s domicile; that is, in this case, in accordance with the law of France governing intestacy. Matter of Hughes, 95 N. Y. 55; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61, sections 2700, 2701, Code of Civil Procedure. The case raises perplexing questions, and should be disposed of after full hearing. Motion denied.