The Surrogate's Court has granted ancillary letters upon a will made without the State by a person who resided without the State. Such letters may be granted where the will has been "admitted to probate within the State or the territory of the United States, where it was executed, or where the testator resided at the time of [her] death." (Surr. Ct. Act, § 159.) The will in this case was executed in Oklahoma and admitted to probate in the State of California upon a finding made ex parte that the testatrix resided there. In the State of Missouri, where the testatrix died and where she had lived after a judicial separation from her husband, letters of administration were issued ex parte to a Public Administrator. There may be a controversy between the State of California and the State of Missouri as to where the testatrix resided and as to which State will be entitled to tax the estate. The State of New York is not interested in that controversy. Perhaps our courts might refuse to take jurisdiction of that controversy. No such question is here presented. Here the Surrogate's Court has assumed jurisdiction to issue ancillary letters testamentary upon proof that the will was admitted to probate in California. The decree is challenged on the ground that the Surrogate's Court could not grant such ancillary letters upon a will probated in California without proof that the testatrix resided there. The statute provides in unmistakable terms that this must appear before such letters may be granted. That question has been decided *Page 469 by the Surrogate's Court without a trial. The question before us is not whether the Surrogate's Court could refuse to take jurisdiction of a controversy, but whether it could take jurisdiction of an application for ancillary letters testamentary and, without a trial, decide a question of fact which forms the statutory foundation of such jurisdiction.
We have held that the grant of ancillary letters may be attacked collaterally unless the Surrogate acted within his statutory jurisdiction. Such jurisdiction is lacking where there is no proof that the foreign will was probated in the court of a State or country where the will was executed, or the testator resided. (Taylor v. Syme, 162 N.Y. 513; Baldwin v. Rice,183 N.Y. 55; Matter of Connell, 221 N.Y. 190.) If a decree of the Surrogate's Court is subject to collateral attack on such grounds, then certainly the jurisdictional question may be contested in orderly fashion in the same court. It is conceded in the prevailing opinion that the decree of the State of original probate is not conclusive on the question of domicile or residence. Indeed, the court in Missouri has made other finding. Then it follows that the court assuming jurisdiction to issue ancillary letters testamentary must grant a hearing upon the contested question without which it has no jurisdiction. The order of the Appellate Division should be affirmed and the second certified question answered in the affirmative.
O'BRIEN, HUBBS and LOUGHRAN, JJ., concur with FINCH, J.; CRANE, Ch. J., concurs in opinion, in which O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., also concur; LEHMAN, J., dissents in opinion, in which CROUCH, J., concurs.
Ordered accordingly. *Page 470