137 N.Y.S. 683 | N.Y. Sur. Ct. | 1912
Application for administration upon the estate of the decedent is made by the public administrator, upon the ground that at the time of the death there was no “ widow, husband or next of kin entitled to a distributive share in the estate of such intestate, resident in the state, entitled, competent or willing to take out letters.”
The only next of kin being two sisters, one of them asks, for the issue of letters to herself, upon the ground that, although she was not a resident of the state at the time of her brother’s death, she has since established a residence in the county of Kings, which still continues.
The question thus presented is intersected by the representation made in behalf of the next of kin that the personal estate involved has been wholly administered by a voluntary division between them, and that there are no debts of the intestate remaining unpaid.
Upon this allegation, it is suggested that formal administration should not be granted, since it would be an idle and onerous mechanism.
Alleged creditors intervene and insist that there should be administration to protect their rights and show that at the death of the intestate there were pending two actions against him and his partner upon partnership debts.
It is stated in the brief of the next of kin that the estate i» of the value of $37,500,000, and that the commissions of an administrator would be more than $375,000. This estimate doubtless includes the real estate, but in any event the amount of commissions would be large enough to insure deliberation in the disposition of this controversy.
The claim that administration would be a useless burden to the estate is presented by the next of kin only as an alterna
It is practically conceded, and will be found, that this sister has become and now is a resident of the county, and that she was not a resident of the state at the time of the death.
Under the general law of this state, next of kin in a prescribed order of preference are entitled to administration, whether resident or nonresident. There is no county in New York, except the county of Kings, where a nonresident, otherwise qualified, is denied administration. By a statute, which has no justification except its own existence, it is provided as follows :
“ He [the public administrator] shall have the prior right and authority to collect, take charge of and administer upon the goods, chattels, personal property and debts of persons dying intestate, and for that purpose to maintain suits as such public administrator as any executor or administrator might by law in the following cases:
“ 1. Whenever such such person dies leaving any assets or effects in the county of Kings, and there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, resident in the state, entitled, competent or willing to take out letters of administration on such estate.
“ 2. Whenever assets or effects of any person dying intestate, after his death, come into the county of Kings and there is no such person entitled, competent or willing to take administration of the estate.” Code Civ. Pro., § 2669.
This enactment, whether under it the test of residence be applied to the time of death, the time of application or the time of the grant of letters, is not only out of tune with the harmony of the law throughout the state, but it is arrayed against the universal traditions of English-speaking peoples,
In the Matter of Goddard, 94 N. Y. 544, the question arose, under the statute relative to the public administrator in Kings county, between nonresident next of kin asking for the appointment of a trust company and the public administrator. Chief Judge Ruger, upholding the right of the public administrator to take, said: “ We should have been gratified to have found a way by which a different result might have been arrived at. The equity of allowing persons entitled, to take by distribution the estate of a deceased person, to select the agency by which such distribution should be made, is so manifest that it ought not to be refused to them except in a case where its impropriety is clear and unmistakable.”
The act must, therefore, be construed strictly against the public administrator, and his demand must fail unless clearly justified by the statutory language.
Section 2669 of the Code of Civil Procedure provides that: “ All provisions of law conferring jurisdiction, authority or power on, or otherwise relating to, the office of public administrator of the city of New York and to the office of public administrator in the several counties of the state, so far as applicable, apply to and are conferred on the office hereby created.”
Under enactments with respect to the public administrator in the city of New York and the county treasurers of the state, it is contemplated that, after the appointment of a public administrator in New York city or a county treasurer of any county other than New York or Kings, such officer may be superseded in favor of next of kin who, though nonresident at the time of death, has since become resident and shall apply for letters within periods prescribed.
There is no present necessity to find that the statutes cited with respect to revocation of the public administrator’s letters are applicable to this county. The application of a statute, which “ applies ” only “ so far as it "is applicable ” is a task which may well be postponed.
The statutory fact that in every county except Kings the next of kin may supersede the public administrator by virtue of residence acquired after the intestate’s death adds a reason, if any were needed, for great jealousy in behalf of the next of kin in determining whether he is only to be preferred to the public administrator in case he is a resident of the state at the time of the intestate’s death.
In the second subdivision of section 2669 of the Code it is unquestionably provided that the next of kin in a case where assets come into the county after the intestate’s death shall be entitled to the letters, if a resident at the time when the assets come.
Clearly there is here one case in which next of kin, nonresident at the time of death but resident at the time when administration become necessary, are qualified in preference to the public administrator, and the test of such residence must be applied, in the case of post-mortem discovery of assets, to the time of appointment.
There is no policy of the law from which any ingenuity
If read together, the two provisions are as if the language was, “ Whenever a person dies intestate, whether there are assets of his then in the county, or such assets thereafter come to such county, and there is no resident entitled to administration, then, and then only, the public administrator shall take letters.”
With or without such paraphrase, there is no reason why the first subdivision must mean what the second subdivision cannot, viz., that the four tests, of residence, title, competency and willingness shall be referred to the time of death. There is no language which would compel that construction. It is not said that the time “ when there is no widow, etc., resident, etc.,” is the time of death. There is nothing in the whole text which is at war with the intent that these four requisites to appointment of the kinsman shall be looked for at the time when he asks to be appointed. Such intent would accord with every instinct and dictate of humanity and declared law.
Several of the essentials to the appointment of the next of kin other than residence may shift between the death of the intestate and the time of the grant of letters. A person primarily entitled may be incompetent at the death but competent when letters are granted. He may be willing and unwilling on alternate days during the same period. No one will say that the tests of competency and willingness must
What need is there then that as to residence, there can be no change ? Why should not the next of kin oscillate between nonresidence and residence during the period before appointment as freely as he may concededly swing between willingness and unwillingness ?
The provision quoted has no meaning in the present tense. It can never have any effect except in its application to future proceedings. Whenever the present tense is used in statutes regulating litigation, it refers to such facts or occurrences as shall be found to be present in the future action or proceeding.
The statute involved in this discussion, in its employment of the word “ is,” no more relates to the time of the death of the intestate than to the time when the statute was passed. It can receive no significance unless it be regarded as equivalent to the words “ shall be.” Indeed, the word “ whenever ” projects the action and tense of the word “ is ” into the time to come.
The law would search zealously for a legislative purpose that the public administrator’s right should fail if a resident, otherwise qualified, should present himself before the time for appointment. What is the language in the act under examination which makes such purpose impossible? Indeed, is it not hard to find any word which is inconsistent with such purpose?
Had it been intended that the public administrator should take letters if there was no person eligible among the kin at the time of death it would have been easy to declare such purpose expressly. To refrain from such expression was, in the face of the general state of the law on the subject, an exclusion of the purpose.
No decision upon the question has been found in this state.
Dr. Schouler, in his work on Executors and Administrators (§ 97) says: “The fundamental principle of both English and American enactments now in force on this subject is that the right to administer, wherever the deceased chose no executor, shall go according to the beneficial interest in the estate; a principle which may yield, however, to other considerations of sound policy and convenience; and the grant should be according to the preference at the time, not of intestate’s death, but of the application.”
It is observable that the learned author last quoted, in his recent work combining his volume on Wills with that on Executors and Administrators under the title of “ Wills and Administration,” has omitted the last clause of the citation with respect to the preference at the time of the application.
Many cases are cited from other states, in which it is held, under varying statutes, that Residence, where requisite to the appointment, is residence existing either at the time of the appointment or the application therefor and that such residence need not have prevailed at the time of the intestate’s death. Stevens v. Larwill, 110 Mo. App. 140; Matter of Succession of White, 45 La. 632; Griffith v. Coleman, 61 Md. 250; Matter of Sprague’s Estate, 125 Mich. 357; Matter of Newman, 124 Cal. 688.
In many of these states the statute interpreted was not necessarily or substantially equivalent to the code section under examination.
In Matter of Succession of White, the Louisiana statute was: “ In all intestate successions, when there is no surviving husband or wife, or heir present or represented, in the State, the Public Administrator of the Parish shall be appointed by the Judge of the proper court to administer the same.”
Of this statute the court of last resort says: “ This language obviously refers to the date of appointment as the time at which it is to be determined whether the conditions on which his right depends exist, and if at that time it is made to appear that there is a “ husband or wife or heir, present or represented, in the State,’ the application must yield to the preference accorded by the law to such surviving spouse or heir.” It is to be observed that the Louisiana statute quoted supra contains in the word “ surviving ” as much suggestion that the test is to be applied at the time of death as can be found, in the New York statute.
In Griffith v. Coleman, supra, there is nothing contained that aids the present question.
In Matter of Sprague’s Estate, supra, the Michigan statute with respect to qualifications of persons" successively entitled to administration cannot be distinguished in substance from the New York statute under inquiry. It was there held as follows: “ The statute applies to the situation at the time letters of administration are granted and not to the situation at the time of the death of deceased.”
If the present question were to be determined upon authority it would be constrained by the decision last cited.
The conclusion is that the petitioning sister is such a resident as was contemplated by section 2669 of the Code of Civil Procedure and is entitled to administration.
Decreed accordingly.
