MATTER OF BRAITHWAITE

MATTER OF BRAITHWAITE. Surrogates Court, Monroe County ; May, 1887. 1. Conflict of laws ¡^personal estate of a decedent.] Personal property has no locality, but follows the person of its owner, and the law of a decedent’s domicile controls in the distribution of his personal estate, without regard to its actual situation. 2. The same ; rights of widow of decedent.] Hence, the widow-of aperson dying domiciled in Maryland, who, by its law, is entitled to a certain share in his personal estate where he leaves a will in which she is unprovided for, is entitled to such share in his personal property situated in this State, notwithstanding a will executed by him when a resident of this State, and admitted to probate here, by which he disposes of his entire estate to others. 3. The same ; place of administration of estate.] Where there are two administrators of an estate, one in the place of domicile and the other in a foreign jurisdiction, the question whether the courts of the latter will decree distribution of the assets, or remit them to the jurisdiction of the domicile, is a question, not of jurisdiction, but of judicial discretion, depending upon the circumstances of the particular case. Administrator’s accounting. Robert Braithwaite, while domiciled at the city of Rochester,'Hew York, made his last will and testament, which was duly executed according to the laws of this State, on December 21, 1869, and thereafter he likewise made a codicil to said will, dated June 19,1873. By these instruments he gave his entire estate in equal shares to his two living children and a grandson, making no mention therein of the person who afterwards became his wife. On December 4, 1874, the said Braithwaite married the contestant herein, at Rochester, Hew York, and thereafter removed with her to Talbot county, Maryland, with the intention of becoming a resident of the latter State. He established his domicile there and continued to live there with his wife, until his death, which occurred on March 21, 1882. He left him surviving, his widow Sarah; his two. children, and the grandson above mentioned. There was no issue of the marriage with this contestant. The will and codicil were duly admitted to probate, by the surrogate of Monroe county, Hew York, on March 27, 1882, the decedent having left personal property in that county. This contestant had due notice of said probate, and consented thereto. Thereafter, letters of administration with the will annexed, were duly granted by said surrogate’s court to "William T. Braithwaite, who by proper petition and citation began this proceeding for a judicial settlement of his account as such administrator. The widow, formerly Sarah Braithwaite, now Fleming, filed formal objections to certain items of the account, and also a petition alleging the marriage between herself and the decedent as aforesaid, after the making of said testamentary instruments; the domicile and death of Mr. Braithwaite in Maryland, and the further fact that on May 9, 1882, on proper proceedings had before the register of wills of Talbot county, Md., letters of administration with the will annexed, were duly issued to her in the State of Maryland on this decedent’s estate. She alleges that such will was not valid as to her, and claims to be entitled to a distributive share in her husband’s estate, as if he had died intestate. D. L. Crittenden, J. M. Angle and G. H. Smith, for the New York administrator and legatees. Fanning & Williams, for the contestant. Code Civ. Pro. § 2612. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator’s residence made since the execution of the will. Ib. § 2694 [After providing as to real property.] Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the State, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the State or country, of which the decedent was a resident, at the time of his death. [MAJORITY — Adlington, Surr.] Adlington, Surr. [After stating the facts as above]. It appears from the proceedings before the two courts above mentioned, that the said will and codicil were duly admitted to probate in both jurisdictions. The time within which to ask for a revocation of such probate has long since passed. . That the will was valid to pass all the testator’s property under the laws of the State of New York, there can be no question. It was also valid as a will of personal property under the laws of Maryland, and entitled thereby to probate as such (Plater v. Groome, 3 Md. 134; Devecmon v. Devecmon, 43 Md. 335 ; Byers v. Hoppe, 61 Md. 207; S. C., 48 Am. Rep. 89). The real question here, therefore, is what law controls the distribution of the personal property now in the hands of this petitioner; the law of New York, or the law of Maryland ? The former permits a testator to dispose of his entire personal estate to persons outside of his own family, and marriage without issue does not revoke a will previously made. In the State of Maryland, the common law doctrine of “ reasonable parts ” is still in force; and the. widow of a man who dies, leaving a will in which she is unprovided for, takes one-third of his personal estate, after payment of debts, if children survive the testator, and one-half thereof, in case there are no children (Griffith v. Griffith, 4 Harris & McHenry, 101 ; Coomes v. Clements, 4 H. & J. 480; Hokamp v. Hagaman, 36 Md. 511, 518). It is well settled in the law, that personal property has no locality, but follows the person of its owner; and that the law of a decedent’s domicile controls in the distribution of his personal estate, without regard to its actual situation (Parsons v. Lyman, 20 N. Y. 103, 112; Chamberlain v. Chamberlain v. 43 N. Y. 424, 433 ; Despard v. Churchill, 53 N. Y. 192, 199; Matter of Hughes, 95 N. Y. 55, 60). It seems clear to me, therefore, that the widow of this decedent is entitled to have the distribution of this personal property, so far as her rights therein are concerned, made according to the laws of the State of Maryland, and to receive such share thereof as'the said laws assign to her. It further remains to decide whether the assets remaining in the hands of the administrator, after deducting commissions and allowances, shall be transmitted to Maryland to be distributed by the court there having jurisdiction, or shall be distributed here, due regard being had to the laws of Maryland in such distribution. • It was said by the court of appeals in Matter of Hughes (95 N. Y. 55), that “ when there are two administrators of an estate, one in the place of the domicile of the testator or intestate, and the other in a foreign jurisdiction, whether the courts of the latter will decree distribution of the assets ... or remit them to the jurisdiction of the domicile, is a 'question, not of jurisdiction, but of judicial discretion, depending upon the circumstances of the particular case.” To the same effect are Despard v. Churchill (53 N. Y. 192), and Harvey v. Richards (1 Mason, 381). In the present case the parties all reside in this State, except the widow; there are no debts to be paid in either State, and the Maryland administrator, this contestant, is not at present in Maryland, as appears from the verification of her answer herein. ' I think, therefore, that it will be for the convenience of parties, and a saving of expense, to have the distribution made here, and accordingly so direct. The widow must take one-third of the net personal estate, and the remainder must be distributed according to the terms of the will. On the argument, it was conceded that the widow was entitled to $150 under the New York statute, nything having been set off to her by the appraisers when the inventory was made here. Since, however, her rights depend on the laws of Maryland, and not of New York, and no statute or decision of the former State having been brought to my notice, giving her anything in addition to her reasonable parts, I therefore hold that she is not entitled to the said $150 allowance under our statute. All formal objections to the widow’s right to intervene in this proceeding are overruled, and the objections to the account interposed by the contestants may be disposed of on the further hearing herein, which may be brought on after three days’ notice.