Will of Nelson

• Decision Date: 13 March 1984
• Citation: 125 Misc.2d 451,475 N.Y.S.2d 194
• Parties: Probate Proceeding, WILL OF Jules NELSON a/k/a Jules I. Nelson, Deceased. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 194

475 N.Y.S.2d 194

125 Misc.2d 451

Probate Proceeding, WILL OF Jules NELSON a/k/a Jules I.

Nelson, Deceased.

Surrogate's Court, New York County.

March 13, 1984.

Richenthal, Abrams & Moss, New York City (Arthur Richenthal, New York City, of counsel), for petitioners Helen Gioulis and Samuel N. Greenspoon.

Morris Pottish, New York City, for respondent Claire Nelson.

RENEE R. ROTH, Surrogate.

The jurisdiction of this court to entertain a petition to probate the will of a non-domiciliary has been raised in this proceeding.

The decedent, Julius Nelson, died on November 19, 1983 in Pennsylvania where he was concededly domiciled. He was survived by his wife Claire, from whom he was separated, and their two adult sons.

On December 5, 1983, a petition for probate of decedent's will dated January 20, 1982 and codicil dated August 6, 1982 was filed by the nominated executors, decedent's friend Helen Gioulis and his attorney Samuel N. Greenspoon. Jurisdiction of this court was invoked on the basis that personal property of the decedent (shares of Hosiery Corporation of America) had come into the county of New York after his death [SCPA 206 sub. 2(b) ]. The beneficiaries under these instruments, decedent's two sons, his father, brother and two sisters, all consented to probate in this county.

No provision was made for decedent's wife Claire in these instruments. She was cited and thereafter filed a paper described as an "answer to petition (with jury demand)". Among other allegations Mrs. Nelson contends that this court lacks jurisdiction over this estate because the predicate jurisdictional assets, the shares of the corporation, were "fraudulently" brought into the county (See Matter of De Camillis, 66 Misc.2d 882, 322 N.Y.S.2d 551, aff'd 38 A.D.2d 687, 327 N.Y.S.2d 554).

Subsequently, despite her contention that the court lacks jurisdiction, Mrs. Nelson moved for the issuance of temporary letters to any person other than the nominated executors under the propounded instrument. The proponents cross-moved for the issuance of preliminary letters.

Briefly stated, some other pertinent facts which give rise to this controversy are as follows.

Decedent and his wife were separated pursuant to an agreement executed on December 2, 1980 in the state of New York. The separation agreement expressly provided that any dispute "shall be determined by the Supreme Court of the State of New York in accordance with the laws of New York". Under the agreement, provision was made for the sale by the wife of her interest in the family corporation, Hosiery Corporation of America, a major asset of the couple.

In 1981, decedent commenced an action in the Supreme Court, New York County to convert the separation agreement into a divorce. Claire answered alleging invalidity of the agreement on various grounds and counterclaimed for a divorce on the ground of abandonment. These proceedings were unresolved at decedent's death and the action to determine the validity of the separation agreement has been adjourned pending the appointment of a personal representative of decedent's estate.

Shortly after decedent's death, Samuel N. Greenspoon (one of the named executors) brought decedent's stock in the Hosiery Corporation of America into this county. The stock is apparently the principal asset of decedent's estate; the company is a Delaware corporation.

With this background we turn to the issue raised by Mrs. Nelson concerning the jurisdiction of this court over the estate of a non-domiciliary.

Several statutes govern original probate of the wills of non-domiciliaries. Subdivision 1 of the principal statute, SCPA 1605, provides that:

"a will of a non-domiciliary which upon probate may operate upon any property in the state and is deemed by the laws of this state to have been validly executed for probate in this state, may be admitted to probate in the same manner as any other will may be admitted to probate under this act, except as herein otherwise prescribed".

Another provision, which is expressed in terms of venue, governs the jurisdiction of the Surrogate's courts over estates of non-domiciliaries. SCPA 206 in relevant part provides that:

"The Surrogate's court of each county has jurisdiction exclusive of every other Surrogate's court over the estate of

2. any non-domiciliary of the state who

(a) left property within that county and no other, or

(b) left personal property which since his death came into the county and no other and remains unadministered".

Thus this court has jurisdiction to admit to original probate, the will of any non-domiciliary who at his death had property within New York county. Under paragraph (b) of subdivision 2 the court also has such jurisdiction if property was brought into the county after the death of the non-domiciliary.

In the latter instance, a decision of former Surrogate Di Falco (Matter of De Camillis, 66 Misc.2d 882, 322 N.Y.S.2d 551, aff'd 38 A.D.2d 687, 327 N.Y.S.2d 554) discusses in detail all prior decisions governing the circumstances under which bringing property into the county after decedent's death will confer jurisdiction upon the court. It is apparent from the decisions that jurisdiction should not be declined merely because property was brought into the county for the purpose of conferring jurisdiction if there was no wrongful intention and other indicia, which will be discussed infra, are also present (see e.g. Matter of Hughes, 95 NY 55; Matter of Brown, 131 Misc. 859, 229 N.Y.S. 304; Warrens Heaton on Surrogate's Courts, sec. 33 p. 5-241). Jurisdiction has however been declined when administration in New York was sought for fraudulent or other improper purpose (Hoes v. N.Y. N.Y. & H. R.R. Co., 173 N.Y. 435, 442, 66 N.E. 119; Matter of De Camillis, supra).

No evidence has been presented here to show any improper purpose in bringing the stock certificates into this county.

Although jurisdiction over the estate of a domiciliary must be accepted by the court, entertainment of a non-domiciliary's estate is discretionary. A number of cases discuss the factors which enter into the exercise of such discretion (see Matter of Heller-Baghero, 32 A.D.2d 328, 302 N.Y.S.2d 235, aff'd 26 N.Y.2d 337, 310 N.Y.S.2d 313, 258 N.E.2d 717; Matter of Goldstein, 34 A.D.2d 764, 310 N.Y.S.2d 602; Matter of Renard, 100 Misc.2d 347, 417 N.Y.S.2d 155, aff'd 71 A.D.2d 554, 418 N.Y.S.2d 553; Matter of Grushovetz, 84 Misc.2d 356, 375 N.Y.S.2d 518; Matter of Dow, 81 Misc.2d 506, 366 N.Y.S.2d 831; Matter of Childs, 63 Misc.2d 470, 312 N.Y.S.2d 390; Matter of Vischer, 53 Misc.2d 912, 280 N.Y.S.2d 49; Matter of Cook, 204 Misc. 704, 123 N.Y.S.2d 568, aff'd 283 App.Div. 1047, 131 N.Y.S.2d 882; Matter of Ryan, 178 Misc. 1007, 36 N.Y.S.2d 1008, aff'd 266 App.Div. 719, 42 N.Y.S.2d 917; Matter of James, 167 Misc. 142, 3 N.Y.S.2d 679, aff'd 254 App Div 723, 4 N.Y.S.2d 1002).

These cases clearly establish that among the primary considerations for the exercise of discretion are the wishes of the testator if expressed and also the convenience of the fiduciaries and beneficiaries.

In the instant case, many considerations exist which require this court to entertain jurisdiction: the propounded instrument contains a provision which indicates probate in New York was...