Surrogate's Court, New York County, October, 1918. [Vol. 104. Let us examine the present distinction between the practice regulating ancillary letters and original letters issued here on a foreign will. It is, I think, comparatively modern. Formerly the test of an ancillary administration did not depend on the form of the letters issued by the probate judge or surrogate, but on the facts of a given case. If a foreign will was in any proceeding, no matter what, proved to be de facto or valid, according to the law of a testator's own domicile, and a supplementary administration was required here, such administration here was regarded as ancillary. See generally Woerner's Amer. Law of Administration (2d ed.), 360, and cases cited; Ordronaux v. Helie, 3 Sandf. Ch. 512, 518. Precisely when the practice arose in the AngloAmerican courts of probate of granting ancillary letters on foreign wills, as contradistinguished from ordinary letters, is somewhat uncertain. From a brief examination, I am inclined to think that it arose comparatively recently, and as a matter of public convenience. In the last two preceding centuries the increased mobility of human society has naturally occasioned new questions involving domicile and the conclusive extraterritorial effect of foreign administrations. These questions gave rise to new forms of procedure. But new forms of procedure do not affect substantive law. The reverse is always the case. At first, in the probate courts of England, there seems to have been some doubt as to the binding effect there of any foreign administration. Matter of Goods of Read, 1828, 1 Hagg. Ecc. 174. But there was soon a tendency to recognize it as controlling where the deceased foreigner left property in England. Viesca v. D'Aramburu, 2 Curt. 277. Mr. Burgin in his "Treatise on the Administration of Foreign Estates," gives an excellent précis of the rise of this doctrine in Misc.] Surrogate's Court, New York County, October, 1918. England (chap. 21). In some instances international treaties next came to regulate the administration of the estates of foreigners. Dicey Confl. Laws, 446, note 1. I have had such instances constantly before me in this court, and the treaty is then controlling. So it was that in course of time it became so much a matter of course to grant local ancillary letters to foreign executors, that a special adjective procedure appears to have been devised to facilitate the process of obtaining ancillary letters. This procedure, originating in the domestic probate courts, in the course of codification came to be restated in the codifying statutes of this state. Then juridical hypothesis stepped in and attributed to the statute, if I am not misinformed, the surrogate's entire authority for the issuance of ancillary letters. In my humble opinion the growth of the law regulating ancillary administration in our probate courts was the exact converse of the late juridical hypothesis, which may be, however, justified by the theory that when a statute directs the mode of issuing letters it is to be regarded as exclusive, provided the intention of the acts conferring on Surrogates' Courts an historic and definite jurisdiction is ignored or disregarded altogether, as is the tendency in this state since the adoption of the Constitution of 1821. If we go further in our analysis of principles we shall probably find that the basis of our domestic law of ancillary administration in aid of administrations on foreign wills really depended originally on the growth of international comity and the rules of what is called private international law. See Despard v. Churchill, 53 N. Y. 199. The principles enunciated in that system were founded on the recognition of the fact that there can be but one estate of a foreigner who dies owning property both at home or abroad, or in states where he is not domiciled. Private Surrogate's Court, New York County, October, 1918. [Vol. 104. international law recognized that the true situs of the property rights of such foreigner is at his own last domicile. But it was forced to recognize also that as every sovereign state claims dominion by vis major to regulate the transfer of all property within its own territorial jurisdiction the property rights of such foreigner, to his property situated outside of the state of his domicile, could be transferable only subject to such rules as the state, in which the property is situated, chose to impose. The necessities of this last fact probably gave rise to the modern practice now regulating ancillary administration of the estates of foreigners, and to the code distinctions between applications for principal or chief administrations and applications for ancillary administrations. It now becomes necessary to notice the prior practice of probate courts when the foreign will was made in a country where the civil law prevails. In the instance of the wills of inhabitants of those countries where the Anglo-American probate system does not prevail, and there is no executor of a will, the custom of both English and domestic courts of probate has been to recognize the right of the "heir," or "universal legatee," to ancillary administration. Lauenville v. Anderson, 2 Sw. & Ir. 24; Ross v. Willett, 76 Hun, 211; Matter of Goods of Smith, 1868, 16 W. R. 1130; Matter of Goods of Earl, 1867, L. R., 1 P. & D. 450; St. Jurjo v. Dunscomb, 2 Bradf. 106. And see Burgin, Law of Administration of Foreign Estates generally. In the system of the civil law the "heir "or" universal legatee" takes the place of the executor of the common-law system. Those familiar with our early law will remember that at first it was thought that there could be no will without an executor, who was held to be the "heres" of the Roman law. It was on the strength of the adjudications last mentioned Misc.] Surrogate's Court, New York County, October, 1918. above, which I unfortunately omitted to cite in my opinion, that I decided Matter of Connell, 92 Misc. Rep. 325; affd., 175 App. Div. 986, and revd., 221 N. Y. 190. In the course of the appeal from my judgment in the Connell case none of such decisions seems to have been noticed, and although long recognized in practice they were, I think, overturned, in effect, by the Court of Appeals, with the possible result that there can now be no ancillary administration in this state on wills made in Latin countries where the civil law prevails, unless it be that the new and very important statutory amendment, to which I shall hereafter refer, obviates this sweeping effect of the final decision in the Connell case, and thus causes our present law to conform with the modern rules of private international law, now regulating ancillary administration in other common-law countries when the will is that of a foreigner domiciled in a Latin country. The Court of Appeals has lately decided, as I understand it, that a next of kin may intervene in a proceeding for ancillary letters of administration for the purpose of raising the question of jurisdiction of the court to issue such letters. Matter of Connell, 221 N. Y. 190. This overrules a contrary practice in this court founded on the statute which required notice to creditors only. Therefore Anna Von Wernstedt has a right to intervene in this proceeding and her intervention cannot now be dismissed. As I have already indicated, it seems that the old jurisdiction of the surrogate to issue ancillary letters is, by the Connell case, made dependent wholly upon the existence of the preliminary requirements prescribed by section 2629 of the Code, and that there can be no ancillary administration on a will not admitted to" probate." In Matter of Connell, supra, the Court of Appeals held that a will executed before a notary Surrogate's Court, New York County, October, 1918. [Vol. 104. and certain witnesses in the province of Quebec, Canada, and registered in a certain office there, was not "admitted to probate " within the meaning of those words in (former) section 2695 of the Code so as to justify this court in granting ancillary letters. Now we come to the real question arising on this application. The Connell decision was made upon the particular language of the section of the Code in relation to ancillary letters which was in force prior to September 1, 1914. At that time section 2695 read: "Where a will of personal property made by a person who resided without the state at the time of the execution thereof, or at the time of his death, has been admitted to probate within the foreign country or within the state or the territory of the United States where it was executed." In the extensive modification of the sections of the Code relating to surrogates' courts effected by chapter 443 of the Laws of 1914, section 2695 was numbered 2629 and amended so as to read as follows: "Where a will of personal property made by a person who resided without the state at the time of the execution thereof, or at the time of his death, has been admitted to probate or established within the foreign country, or admitted to probate within the state or the territory of the United States, where it was executed." It is to be noted that the amendment consists in the words 66 or established" before the words "within the foreign country." As it is the amended section which must govern me in this application, it seems to me that the question to be considered is whether the procedure adopted by the notary with whom the will was deposited in appearing before the president of the Civil Tribunal of Nice and having the will opened and read and recorded in that court constituted such a determination of the testamentary character of the |