This is the second motion made by the respondent for a return of our remittitur for amendment, the first having been denied and no leave given to renew.
The motion also includes an application for a re-argument, based mainly upon the fact that the executrix is a non-resident of the state, but it appears that she became a non-resident in May, 1902, more than three years before the appeal was argued in this court. Both applications are predicated substantially upon the inconvenience to the creditors in this state of going to the state of New Jersey in order to sue the former executrix, Mrs. Thompson. This fact did not give the Surrogate's Court jurisdiction of an action in the nature of a creditor's bill to reach assets not belonging to the estate. We did not pass upon the merits in our decision, but simply held that the surrogate had no jurisdiction of such a controversy. (Matter of Thompson,184 N.Y. 36.) Outside facts, not appearing in the record but shown only by the affidavit of the attorney for the creditors, cannot give the surrogate jurisdiction if the statute never conferred it. Either the surrogate had or had not jurisdiction to decide the question which arose between the creditors and the executrix as to the title to the moneys purchased by the excess of insurance under the statute. If the surrogate had jurisdiction our decision was wrong. If he had no jurisdiction under any circumstances, as we unanimously held, then no outside fact could confer jurisdiction upon him. There is no inconsistency between our decision in this case and that made in Kittel v. Domeyer (175 N.Y. 205). That was an action *Page 575 in the Supreme Court in equity and did not directly or indirectly involve any question as to the jurisdiction of a surrogate. We followed that decision and made it the basis of our judgment in the case before us as to the rights of creditors to the excess of insurance and the basis upon which they rest, namely, legislative grant. We held, as we had held before, that such insurance moneys are not general assets of the estate but constitute a special fund created by statute for a special purpose, to be applied on the claims of creditors only after a decree in a court of equity. There is nothing to call for a re-argument or for an amendment of the remittitur, and the motion should, therefore, be denied, with ten dollars costs.
CULLEN, Ch. J., O'BRIEN, HAIGHT, VANN, WERNER and HISCOCK, JJ., concur; WILLARD BARTLETT, J., not sitting.
Motion for re-argument denied.