Matter of Heller-Baghero, 26 N.Y.2d 337 (1970)

A Surrogate Court possesses discretion to entertain original probate of a non-domiciliary’s will when the bulk of the estate’s assets are in New York and prior proceedings in the domiciliary jurisdiction have not conclusively determined the validity of a later will.

Summary

The New York Court of Appeals addressed whether a Surrogate Court properly exercised jurisdiction over the original probate of a 1964 will of a non-domiciliary (Austrian resident) when an estate proceeding based on a prior 1962 will was pending in Austria. The Court affirmed the lower court’s decision to strike objections to the New York probate, holding that the Surrogate Court had discretion to assert jurisdiction. Key factors influencing the decision included the fact that 90% of the estate’s assets were in New York, the Austrian proceedings had not conclusively determined the validity of the 1964 will, and requiring probate in Austria would be unduly burdensome.

Facts

Eudolph Heller-Baghero, an American citizen, executed a will in New York City in 1964, revoking all prior wills and leaving his estate to his divorced wife and another woman. A prior will from 1962 existed, which was the subject of estate proceedings in Austria. The 1962 will left the bulk of his property to his divorced wife, or his daughters if she predeceased him. Approximately 90% of the testator’s assets were located in New York. The Austrian court was aware of the 1964 will, but no certified copy was ever formally presented to them. The daughters were granted administration of the Austrian estate, but the Austrian court indicated that the 1964 will, if valid, would invalidate the prior will, potentially leading to a legacy suit.

Procedural History

The 1964 will was presented for probate in the Surrogate’s Court, New York County. The testator’s daughters filed objections, arguing that the testator was domiciled in Austria and a prior will was the subject of proceedings there. The Surrogate struck the objections. The Appellate Division affirmed, granting leave to appeal to the New York Court of Appeals on a certified question, indicating the determination was a matter of law, not discretion.

Issue(s)

Whether the Surrogate Court had discretion to entertain jurisdiction for original probate of the 1964 will, and if so, whether the exercise of that discretion was exceeded as a matter of law.

Holding

Yes, the Surrogate Court had discretion to entertain jurisdiction because the statute authorizes probate, the 1964 will had not been probated or denied in the domiciliary jurisdiction, and the bulk of the assets were in New York.

Court’s Reasoning

The Court relied on Section 1605 of the Surrogate’s Court Procedure Act, which allows original probate of a non-domiciliary’s will if it affects property in New York and is validly executed under New York law. The statute restricts original probate only when the will has already been probated or denied probate in the testator’s domicile. Since the 1964 will was not considered in the Austrian proceeding, the statute permitted the Surrogate Court to exercise discretion. The Court reviewed prior cases, including Matter of Leonori, Matter of Wolf, and Matter of McCullough, which established that the Surrogate Court’s decision is discretionary, based on factors like comity and the location of assets. The Court found the Surrogate Court’s decision justified by the substantial assets in New York, the executor and a legatee being New York residents, and the potential for extensive litigation in Austria. The court noted, “the facts of the particular case justify the entertainment of original jurisdiction, although they certainly would not compel it.” The court emphasized that the law of Austria would govern the intrinsic validity of the will and devolution of property not disposed of by will, stating, “the only issue is of the validity of the 1962 and 1964 wills, and not whether the law of New York or Austria governs the intrinsic validity, or effect, of the will or devolution of the property when not disposed by will.”