McMaster v. Gould

Headnote

Parties — executors and administrators — jurisdiction — when Supreme Court may not bring in foreign executors in place and stead of a deceased defendant.

McMaster v. Gould, 210 App. Div. 806 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 2, 1924, which reversed an order of Special Term granting a motion to substitute the executors of George J. Gould, deceased, as parties defendant in this action in place and stead of said George J. Gould and denied said' motion. The deceased was and the executors are residents of the State of New Jersey, the will was admitted to probate and letters testamentary issued by a court of that State and it is not claimed that said executors had taken possession of' any assets in this State. The Appellate Division held that the Supreme Court of this State had no power to bring the foreign executors into this suit, pending before it, against; their will and that plaintiff’s remedy was by way of ancillary letters under the Surrogate’s Court Act. The following question was certified: Did the court at Special Term have power to substitute the executors of the last will and testament of IGeorge J. Gould, deceased, appointed by the Orphans’ Court of New Jersey where his will was probated, as parties defendant herein without their consent, in place of their testator, pursuant to the proceedings instituted by the plaintiffs herein for that purpose, and to revive as against the executors this action, which at the time of testator’s death was pending in the Supreme Court of this State?