In re the Appointment of a Guardian of the Person & Property of Rowe , 1 A.D.2d 884 ( 1956 )

This appeal is from orders of Special Term denying motions to dismiss the petition in this incompetency proceeding on the ground that the court had no jurisdiction inasmuch as Mary Edna Rowe, the subject of this proceeding, was domiciled in Connecticut, rather than in New York. We believe that the question of domicile should be determined on testimony rather than on affidavits alone. That will afford full opportunity to adduce all the facts pertinent to that issue. It appears that Mary Edna Rowe was duly declared incompetent in the State of Connecticut and a conservator of her property was there appointed. Therefore, if it should be found, after a hearing, that her domicile is in Connecticut, there will be no need of having her again declared incompetent in New York solely for the purpose of receiving payments from her husband’s estate which is being administered here. Orders unanimously reversed and the motions granted to the extent of referring the matter to an Official Referee to hear and report on the question of domicile. Settle order on notice. Concur — Botein, J. P., Rabin, Cox and Frank, JJ.