Opinion
January 21, 1933.
Milburn D. Smith [ Wallace H. Sidney of counsel], for the petitioner.
Mauhs Van Deusen, for Helen R. Humpfner.
Adolph Humpfner died October 12, 1932, and three days later Harry V. Berry was appointed temporary administrator of his estate by the Surrogate's Court of Montgomery county. On October 17, 1932, this court, being unaware of said appointment, upon the petition of Helen R. Humpfner, alleging that she was decedent's widow, that he left no other distributees, and that decedent was a resident of Sharon Springs, Schoharie county, N.Y., issued letters of administration upon the estate to her. Several residents of Schoharie county presented a petition to the Surrogate's Court of Montgomery county, alleging that the decedent resided in Schoharie county and asked that temporary letters of administration issued to Mr. Berry be revoked, and the surrogate of Montgomery county issued the usual citation to show cause why the letters should not be revoked, and on the return day of the citation Mr. Berry filed an answer and a large number of witnesses were sworn before the surrogate of that county as to the decedent's residence. He has rendered his decision holding that Adolph Humpfner was a resident of Ames, Montgomery county, and on December 30, 1932, issued permanent letters of administration upon said estate to Mr. Berry. Mr. Berry has filed a petition in this court asking that letters of administration issued to Helene R. Humpfner be revoked. The usual citation was issued.
The State has conferred jurisdiction over the subject-matter of estates to the Surrogate's Court of each county. Whether or not this jurisdiction may be exercised by the Surrogate's Court of a particular county depends upon certain jurisdictional facts, one of which is the residence of decedent, and should be determined by the surrogate to whom it is first presented. ( Matter of Daniels, 140 Misc. 90.)
The surrogate of Montgomery county having determined that the decedent was a resident of that county, his decision is judicial and conclusive until reversed on appeal or vacated and this court is excluded from exercising jurisdiction in this estate. (Surr. Ct. Act, § 44; Matter of Buckley, 41 Hun, 106; Matter of Maginn, 215 A.D. 790; Matter of Daniels, 140 Misc. 89, 90.)
The letters of administration issued to Helen R. Humpfner upon the estate of decedent by this court on October 17, 1932, are hereby revoked and the order directing the granting and issuing of said letters to her on the same day is vacated. Decree accordingly.