People ex rel. Safford v. Court

• Decision Date: 16 November 1920
• Citation: 229 N.Y. 495,128 N.E. 890
• Parties: PEOPLE ex rel. SAFFORD v. SURROGATE'S COURT, GENESSEE COUNTY, et al.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 495

128 N.E. 890

PEOPLE ex rel. SAFFORD

v.SURROGATE'S COURT, GENESSEE COUNTY, et al.

Court of Appeals of New York.

Nov. 16, 1920.

Prohibition by the People, on the relation of Mabel L. Safford, against the Surrogate's Court of the County of Genesee and others. From an order of the Appellate Division (-- App. Div. --, 182 N. Y. Supp. 945) affirming, as matter of law, an order of the Special Term denying an application for an alternative writ of prohibition, the relator appeals.

Reversed, and writ granted.

Appeal from Supreme Court, Appellate Division, Fourth department.

E. Jean N. Penfield, of New York City, for appellant.

E. A. Judd, of Batavia, for respondents.

ANDREWS, J.

A resident of New Jersey died in Germany, leaving only personal property located in Genesee county. His will was there admitted to probate. It created a trust and named the executors as trustees. When the estate was administered, an accounting was had, and in pursuance to the decree the trust fund was turned over to the trustees. One of them resided at Batavia. The others were nonresidents. The resident trustee and the successors of the other two have now filed with the surrogate a petition for a final accounting and for permission to sell certain securities. A citation was thereupon issued, and the surrogate of Genesee county intends to assume jurisdiction over the matter. A motion has been made by one of the parties interested for an alternative writ of prohibition. The motion was denied and the Appellate Division affirmed this denial. The only question at issue is as to the jurisdiction of the surrogate. It is said that no such jurisdiction exists over the accounting of testamentary trustees where the trust was created by a nonresident who left no real property within the state

[1][2] The jurisdiction of the surrogate is the creation of statute. If not conferred upon him, it does not exist. This jurisdiction over the accounting of testamenary trustees has its origin in chapter 272 of the laws of 1850. Such a trustee was then for the first time permitted to account voluntarily before the surrogate of the county in which the will was proved. Definitely, therefore, the particular surrogate to whom jurisdiction over such an accounting was given was fixed. The residence of the testator or of the trustee, the situs of the property, all this was immaterial. Chapter 782 of the Laws of 1867 provided that ‘the surrogates' may compel an accounting. Thus he first acquired jurisdiction over involuntary proceedings for this purpose. Obviously it is implied that the surrogate who may compel it is the surrogate before whom a voluntary accounting might be had.

[3] With the law in this condition, the Code of 1880 was adopted. Wider powers were granted to Surrogates' Courts. They might settle the accounts and control the conduct of testamentary trustees ‘in the cases and in the manner prescribed by statute.’ The general grant of power was therefore limited by such clauses in the Code or other statutes as defined the circumstances under which it might be exercised. Title 6 of chapter 18 is entitled, ‘Provisions relating to a testamentary trustee,’ and is said to be a revision of former acts. Section 2802 allows the trustees to file their account before the surrogate having jurisdiction ‘of the estate’ (changed in 1885 to read ‘of the estate or trust’). The act of 1850 defined who this surrogate was-the surrogate of the county where the will was admitted to probate. We think that this section had the same meaning-that ‘the estate’ referred to was the estate from which the trust estate was carved. Otherwise there is nowhere to be found any provision which defines the surrogate before whom such proceedings may be taken. So the limitation still remained that the surrogate of the county where the will was admitted to probate might take an account, voluntary or involuntary. But not contented with this provision appears for the first time section 2820 entitled, ‘Application of this title.’ ‘The provisions of this title apply to a trust created by the will of a resident of the state, or relating to real property, situated within the state, without regard to the residence of the trustee, or the time of the execution of the will.’

[4] While the meaning is not entirely clear, we hold that the intention was to exclude the authority of the surrogate in the case of trusts created by the will of a nonresident. A reason may have been supposed to exist for such a limitation. The will of a nonredisent dying elsewhere might be proved here provided any personal property belonging to the deceased was present in the state. The executors own their authority to the decree of the surrogate and are subject to his control. As to trusts, however, in such a case difficulties may arise. The situs of the property and the validity of the trust and its effect are fixed by the domicile of the creator. Often the executors would be directed to deliver the property to a nonresident trustee. Some of the provisions of the Code are inconsistent with such a situation. A surrogate may compel a testamentary trustee to perform any duty imposed upon him by statute. Section 2481. He may direct the securities or a portion of them to be deposited with the county treasurer. Section 2595. If the trustee is a nonresident a bond may be required. Sections 2638, 2815. If he fails to give it he may be removed and a successor appointed. Sections 2816, 2817. How are these orders to be enforced against a nonresident? If, on the other hand, the trustee happens to be a resident, the validity of the trust in such a case depends upon the law of a foreign state. The rules on the subject of trusts are notoriously difficult. Even the Supreme Court with its general jurisdiction might decide to remit the matter to the state of the testator's domicile. And at the same time that these sections were adopted there...