Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MATTER PROBATE WILL RUDOLF HELLER-BAGHERO (07/08/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.42518 <http://www.versuslaw.com>; 302 N.Y.S.2d 235; 32 A.D.2d 328 July 8, 1969 IN THE MATTER OF THE PROBATE OF THE WILL OF RUDOLF HELLER-BAGHERO, DECEASED. STEFANIE HELLER ET AL., APPELLANTS; THEODORE MATTERN, RESPONDENT Appeal from an order of the Surrogate's Court, New York County (S. Samuel Di Falco, S.), entered on March 14, 1969, granting a motion to strike objections to the probate of decedent's will. Hans Harnik of counsel (Robert Morrow with him on the brief; Wachtell Manheim & Grouf, attorneys), for appellants. Helmut J. Kraemer of counsel (Theodore Mattern, in person, attorney), for respondent. Capozzoli, J. Stevens, P. J., and Eager, J., concur with Capozzoli, J.; Steuer, J., dissents in opinion in which Nunez, J., concurs. Author: Capozzoli


Appeal from an order of the Surrogate's Court, New York County (S. Samuel Di Falco, S.), entered on March 14, 1969, granting a motion to strike objections to the probate of decedent's will.

Capozzoli, J. Stevens, P. J., and Eager, J., concur with Capozzoli, J.; Steuer, J., dissents in opinion in which Nunez, J., concurs.

Author: Capozzoli

 On October 28, 1968, subsequent to the time when the will of the decedent, dated July, 1962, was offered for probate in the Austrian court, this proceeding was begun in the Surrogate's Court of New York County for the probate of a later will of the same decedent, which was dated February 5, 1964. This last will was executed here in New York, and recites the fact that the decedent is a resident here and names a New York resident as residuary legatee of one half of the estate. The objections to the probate proceedings in the Surrogate's Court are based on the allegations of the residence of the testator, at the time of his death in Austria, and the probate of the 1962 will in the Austrian court, which allegedly has domiciliary jurisdiction over the estate.

It is important to note that 90% of the decedent's assets are located within the County of New York. This fact is not contradicted.

The learned Surrogate was correct in holding that subdivision 2 of section 1605 of the Surrogate's Court Procedure Act does not apply in this case because that section speaks of a will admitted to probate or established in the testator's domicile. We are not considering the earlier will of 1962. The will which is before us is the later will of 1964.

The dissenting opinion's reliance on SCPA 206 has been noted; however, the case at bar is not affected by that section one way or the other, in view of the peculiar factual situation presented. The issue appears to be one of comity, rather than jurisdiction. It is, of course, true that the pending proceedings in Austria, involving an earlier will, should be considered as a factor in evaluating the exercise of the Surrogate's Court's discretion to entertain jurisdiction in this case. But, as against this one allegation, there are many other factors which lead to the conclusion that the learned Surrogate properly exercised his discretion in favor of retaining jurisdiction. The factors which favor the result reached include the making of the will in New York; the New York residency of a substantial legatee under the will; the statement in the will that the testator is a resident of New York State; the location of over 90% of the property of the decedent in New York County and the undenied allegation that the interest of the New York legatee would be adversely affected by probate in Austria.

In the case of Matter of Lamborn (168 Misc. 504, affd. 255 App. Div. 755, affd. 280 N. Y. 504), while the court (Foley, S.) dismissed a proceeding for the probate of a will, it concluded that the court had "unquestionable * * * discretion" (p. 510) in these proceedings. The court stated at page 509 as follows: "In the exercise or non-exercise of discretion to entertain a probate proceeding of the will of a non-resident, the surrogates are guided by the circumstances of each case, by the relative rights of the parties in interest * * * and other distinctive considerations."

In view of the totality of the facts, as set forth above, I am of the opinion that the rule of comity does not require that the Surrogate's Court of New York County relinquish jurisdiction in this matter.

Order directing that objections filed by appellants in this proceeding be stricken should be affirmed, with costs to all parties filing briefs hereon payable out of the estate.

Disposition

Decree entered on March 17, 1969, affirmed, with $50 costs and disbursements to all parties (objectants-appellants and proponent-respondent), payable out of the estate.

Steuer J. (dissenting).

The decedent died a resident and domiciliary of Austria. On September 1, 1967, a will of the decedent dated July 1962 was admitted to probate in a competent Austrian court. On October 28, 1968, this proceeding was begun in the Surrogate's Court of this county for the probate of a will of the same decedent dated February 5, 1964. Objections to the probate were stricken by the Surrogate.

It is pointless to discuss what the law is in regard to the probate of a will of a nonresident where no prior proceedings for probate have been entertained in any other jurisdiction. As regards probate in a sister State, it has invariably been held that where probate of an earlier will has been allowed in the decedent's domiciliary State proceedings to probate a subsequently dated will will not be entertained in this State (Matter of Leonori, 130 Misc. 499; see Matter of Connell, 221 N. Y. 190). Under certain circumstances, as where the second will had been before the court of the sister State and rejected in favor of the earlier will, such a ruling would be constitutionally mandated by the requirements of full faith and credit. But even where no such circumstance is present, our courts have pointed out that the same procedure is advisable as a matter of comity to avoid the possibility of conflicting decisions; and all proceedings involving the validity of a claimed subsequent will should be had in the State where a will of the testator had already been probated ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.