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Court for the Southern District of New York did not address the
first ground but granted the motion on the basis of the
executors' lack of capacity to sue under New York law. The Court
of Appeals for the Second Circuit reversed the lower court,
upholding venue in New York and disagreeing with the argument as
to the lack of ancillary letters.
As to the lack of ancillary letters in New York, the Court
of Appeals for the Second Circuit held that
the claim of the executors is technically in their own
right, for it is to recover monies which they paid and
to right an error which they, under governmental
compulsion, committed. Wherever the transaction giving
rise to a right of recovery occurs after the death of a
testator, suit to enforce the right must be brought by
the executors as individuals, rather than as
representatives. * * *
Kruskal v. United States, 178 F.2d at 740.
The Court of Appeals for the Second Circuit also concluded
that proper venue was in the Southern District of New York where
the executors resided. Citing 28 U.S.C. sec. 1402(a) that refund
suits may be prosecuted only in the judicial district where the
plaintiff resides, the court stated:
Since there is nothing to suggest departure from
the usual rule that residence of the individual
plaintiffs, rather than the situs of their estate,
controls questions of federal jurisdiction, Mecom v.
Fitzsimmons Drilling Co., 284 U.S. 183, * * *;
Greenough v. Tax Assessors of City of Newport, 331 U.S.
486, 495, * * *, we think the plaintiffs have chosen
the correct venue for their action. * * *
Id. at 739.
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