In re the Estate of Thorold , 147 Misc. 899 ( 1933 )

Delehanty, S.

This is an application for ancillary letters testamentary. Testatrix died in England on December 11, 1931, and her will, which recited she was a resident of London, was there admitted to probate on February 17, 1932. The husband of testatrix has been cited on this application for ancillary letters as a person claiming to be a creditor. He has appeared and filed an answer asking for dismissal of this proceeding on the ground that testatrix was a resident of New York county, temporarily sojourning in England at the date of her death. After the institution of this proceeding the husband filed in this court a petition for probate of the will. Petitioner contends that creditors only need be cited on this application (Surr. Ct. Act, §§ 159, 162) and that, therefore, the husband in his capacity of surviving spouse is not entitled to oppose it. The will makes no provision for the husband and hence the domicile of testatrix controls his right of election under section 18 of Decedent Estate Law. A surviving spouse in circumstances such as are here presented has the right to appear and be heard on the question of testatrix’s actual domicile. (Matter of Connell, 221 N. Y. 190, 196.) This issue of domicile will be heard by the court on the 31st day of May, 1933, at two p. m.