Opinion
December 5, 1957
Nelson Smith Kirk, 2nd, for Robert M. Shailer, petitioner.
A. Lionel Levy for State Tax Commission.
Palmer, Serles, Delaney, Shaw Pomeroy for Russell H. Shailer, respondent.
Testatrix died a resident of Connecticut leaving tangible and intangible personal property in Queens County. Under her will the entire estate is to be divided equally between her two sons who are nonresidents. Decedent's son, Robert M. Shailer, the named executor, filed a petition for probate in this court. After the institution of this proceeding his brother, Russell H. Shailer, who knew of the existence of the will received letters of administration on his mother's estate in Connecticut. Russell H. Shailer now moves to dismiss the petition for lack of jurisdiction.
Although testatrix was admittedly a resident of Connecticut and the two legatees are nonresidents, this court may, in its discretion, permit original probate of a will of a nonresident who dies outside the State, leaving personal property within this county. (Surrogate's Ct. Act, § 45, subd. 3.) Under similar circumstances, jurisdiction was entertained where the will named a New York bank as executor. ( Matter of James, 167 Misc. 142.) In the instant case, testatrix named her son Robert as executor. Although not a resident of this State, he has petitioned this court to probate his mother's will. No persuasive reasons have been presented why he should not be permitted to do so. The motion to dismiss the present proceeding is, therefore, denied. Since there is no real property in this jurisdiction, the petition and papers herein will be deemed to be amended so as to limit the relief to the probate of the instrument as a will of personal property. Submit decree on notice.