Van Wyck v. Van Wyck , 29 N.Y. Sup. Ct. 9 ( 1880 )

Barnard, P. J.:

Under the provisions of the Revised Statutes non-resident executors were bound in all cases to give security such as in cases of intestacy was required from administrators. (2 R. S., 70.) In 1873 the Legislature amended the Revised Statutes so that in cases where the testator required, in the will itself, that no security should be .-required, letters should issue to his executor without it, “ if sunk, ■executor has his usual place of business within this State.”

The will in the present case contains a full request that the ex■ecutor be permitted to act without security, and the only question is whether the executor has his usual place of business within the State. The facts are entirely undisputed. The executor named in the will, Charles II. VanWyck, is a resident of Nebraska, and holds the office of State-Senator there. He owns a very large farm there, upon which he resides. He has an overseer, and is absent a considerable portion of each year therefrommost of this period of ■absence is.spent in Middletown, in this State. The executor resided .at Middletown before he moved west, and is still a director in the National Bank there. It does not appear what the business of the 'executor in this State was before he went west. He has not now .any place of business here, except as he uses a desk in his attorney’s office while here, and except that he has a desk containing papers in tire hotel at Middletown. He has a large amount of real and personal property in this State. It, takes nearly three days to go to Middletown from his home in Nebraska. His visits are periodical and without any regularity, beyond being two or three times a year •“ whenever business required.”

"With great hesitation I think the executor has not “ his usual ■place of business in this State.” He has no business beyond- the management of his own property here; has no stated place of bus-mess. He is not usually at any point within the State for the purpose of doing business, but only occasionally and irregularly. He 'lives some three days’ travel from this State. The statute was ■designed to meet cases very different from this one. There are very many persons who live in an adjoining State, but who usually .-and habitually are pursuing their daily business within the State, who pass their business hours in New York, and who have a formal .■residence out of it. It seems to me that the statute intended to jreach such cases only.

Judgment reversed, with costs to appellant out of the estate.

IDykman, J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ.

Decree of surrogate reversed, with costs to appellant and guardian ad lAtem, out of the estate, and proceedings remitted to surrogate to require security from the executor.