Opinion · Nylaw New York

MATTER OF WILSON, 216 App. Div. 735 (1926)

In the Matter of Application of JOHN TAYLOR WILSON, as Conservator andas Comm. of the Est. of PHILIP A. MEYER, an Incompetent, to Compel theFiling of an Account by UDONA B. MEYER, as Ancillary Ex’[r, x], etc., ofHUGO R. MEYER, Deceased., 216 A.D. 735 (Appellate Division of the Supreme Court of New York, First Department. 1926)

Type: Opinion
Court: Nylaw New York
Jurisdiction: Nylaw
Date: 1926-01-01
Topic: general

MATTER OF WILSON, 216 App. Div. 735 (1926) In the Matter of the Application of JOHN TAYLOR WILSON, as Conservator andas Committee of the Estate of PHILIP A. MEYER, an Incompetent, to Compel theFiling of an Account by UDONA B. MEYER, as Ancillary Executrix, etc., ofHUGO R. MEYER, Deceased.Appellate Division of the Supreme Court of New York, First Department.

Citator

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MATTER OF WILSON,216 App. Div. 735(1926)

In the Matter of the Application of JOHN TAYLOR WILSON, as Conservator and

as Committee of the Estate of PHILIP A. MEYER, an Incompetent, to Compel the

Filing of an Account by UDONA B. MEYER, as Ancillary Executrix, etc., of

HUGO R. MEYER, Deceased.

Appellate Division of the Supreme Court of New York, First Department.

March, 1926.

Appeal from Surrogate's Court of New York County.

Decree affirmed, with costs, on opinion of Foley, S. [Reported in125 Misc. 361.]

Present — Clarke, P.J., Dowling, Merrell, McAvoy and Martin, JJ.; McAvoy, J., dissents.

McAVOY, J. (dissenting):

The transmission of these assets to the custody of the domiciliary executor in Australia, who is also the ancillary executor in New York and besides the sole legatee of the testator and whose residence is in Oklahoma, in an instance, such as this where there are no creditors or unadministered assets in the jurisdiction of domicile, and the only person interested besides the sole legatee is an incompetent person residing in Illinois, who has a claim against the estate asserted by his Illinois conservator, who is his committee here, will effect the result of compelling this incompetent creditor to go to Australia to establish his claim, when the matter may be settled, in the surrogate's discretion, in this the ancillary jurisdiction. Such discretionary power ought to have been exercised in this instance to avoid the anomaly of requiring a resident of a sister State to repair to Australia to adjust the claim asserted. Therefore, I vote to reverse and direct that the claim be heard in the ancillary jurisdiction of New York.