108 N.Y.S. 281 | N.Y. App. Div. | 1908
Lead Opinion
Robert E. Campbell, a resident of the county of Erie, died intestate in the city of Buffalo on the 27th day of May, 1907. He left him surviving no widow, descendant or parent,, but a brother, the petitioner, who resides in the State of California, and nephews and nieces, none of whom reside in the State of Hew Tork. He left nearly $50,000 in personal property. On the thirty-first day of May letters of administration of the goods, etc., of the decedent were issued to Edward H. Pfohl upon his petition and who was a creditor of the intestate to the extént of $200, and Pfohl is now administering the trust. Ho citation was issued in the proceeding and the appellant did not know of the death of his brother until two weeks after -■ it occurred, and he had no knowledge of the issue of .letters until some time after they were granted.
On the twelfth day of July he caused his petition to he filed in the Surrogate’s Court of Erie county, asking for the revocation of the letters already issued, and after a hearing the application was denied.
The court, in the case last cited, say (p. 528):. “ The. plain inference and obvious meaning is that non-residence excludes only when the claimant- is not a’citizen of the United States; but where that citizenship exists the non-residence is immaterial, and has no effect upon the priority of right. The rule is not changed by section 2662 of the Code,
• The appellant, therefore, within this imperative requirement of the Code, was first entitled to the issue' of letters because lie was the 'nearest relative of the intestate residing within the United States, unless there is some other provision modifying or nullifying this statute, which is the only one defining the order of priority of relatives to administration.
It is contended that the right of a non-resident next 'of kin may be wholly destroyed if the surrogate dispenses- with citation to him, and this contention is founded upon section 2663
It is-recognized as a right dependent upon the right to share in the personal estate. In fact, the order of priority is preserved so carefully that where several persons are equally entitled to administer, the one to whom letters are issued may have a stranger join with him in the administration (§ 2660). In this way even though. he may not be able -personally to obtain the necessary bond or may hesitate to assume alone the administration of a large estate, he may still retain his right.
• Section 2685, in providing for the revocation of letters of administration, includes among the cases where the administrator has
In this case the petitioner is entitled to one-fourth of this estate of $50,000, and is the one first entitled to the issue of letters. The respondent was appointed without any notice to him. Speedily upon learning of the death of his brother he made application to revoke the letters already issued, with a view of asserting his own right.
If I am in error in the position I have taken, I think the surrogate abused his discretion in not issuing citation. Again, the original petition filed estimates the value of the personal estate of the intestate at the sum .of $15,000. Subsequent to the issue of letters to the respondent, he ascertained that the property amounted to about $50,000 and another bond was given. It might be the surrogate would have required a citation to issue had he been apprised of the value of the property in the petition filed by the respondent. The exercise of his discretion in determining whether ,a citation shall issue must depend to a large degree upon the value of the estate. His statement in his opinion (56 Misc. Rep. 229) that he would not have been influenced by the fact is no sufficient answer. He was then seeking to justify his refusal to revoke. When the correct amount of the property was made known to him he should have caused notice to be served on the appellant. Hpon appeal from the decision of a surrogate on the facts, the appellate court has the same power to determine the facts which the surrogate possessed; (Code Civ. Proc. § 2586.) A reasonable consideration of the rights of the next of kin required the revocation of the letters issued to the respondent.
The order of the surrogate should be reversed, with costs of both parties payable out of the estate.
All. concurred, except McLeotan, P. J., and Eobson, J., who dissented in an opinion by Eobson, J.
See 2 R. S. 74, § 27, as amd. by Laws of 1863, chap. 362, § 3, and Laws of 1867, chap. 782, § 6; 2 R. S. 75, § 32, as amd. by Laws of 1830, chap. 320, § 18, and Laws of 1863, chap. 362, § 4. See, also, Laws of 1880, chap. 245, § 1, subd. 2, ¶ 3; Id. subds. 8, 39, 43; Laws of 1893, chap. 686, Schedule of Laws Repealed; Id., amdg. Code Civ. Proc. (Laws of 1880, chap. 178), § 2660 et seq., as amd. by Laws of 1894, chap. 503, and Laws of 1897, chap. 177.—[Rep.
[By the amendment of 1893'this section and.other sections were consolidated in section 2663.— [Rep.
Dissenting Opinion
It seems to-be conceded that the person to whom the letters were issued is in every way properly qualified to faithfully perform the
The only question presented- on this appeal is whether the surrogate should have revoked letters of administration concededly regularly granted to respondent, a creditor of deceased, on the application of appellant, a non-resident brother of deceased, made after such letters had been so granted, upon the single ground that appellant had by statute a prior right to such letters.
The question -now presented does not appear to have been directly decided by any court in any reported decision prior to that delivered by the surrogate in the case now. before us. The only conclusion to be drawn from that fact would seem to be, however, that such an appointment is so clearly unassailable, that hitherto no litigant has had the temerity to assume the responsibility of attacking it.
The right to administer upon the estate of a decedent is purely a creation of the statute. Formerly, as is matter of current historical knowledge, the designated legal machinery of the government itself had exclusive jurisdiction of the matter to the exclusion of even the nearest relatives of the deceased. The right to administration has. long been, and is now, fixed by statute, which enumerates specifically the persons, or classes of persons, who are entitled to administration in the order of priority of such right. (Code Civ. Proc. § 2660.) But this statutory right is not absolute, nor is it exclusive. It cannot be properly classed as in the nature of a property right. The appointment when made does not endow the representative in his capacity as an individual with any interest in the estate. Even Ms right to commissions is dependent -upon allowance by the Surrogate’s Court, and is not fixed until it is thus established. It is simply a right prior or superior to that of an individual -or individuals of a subordinate class, provided that right is timely asserted. Any person belonging to any one of the classes designated in the statute may apply for letters of administration -upon an intestate’s estate. But before letters are issued to such- an applicant citation must be issued and served as prescribed in section- 2663, if there be any person who has a prior or equal right to letters. On the return of such citation, unless cause be shown why letters should not be granted to the petitioner, either by reason of the application
The order should be affirmed.
McLennan, P. J., concurred.
Order of Surrogate’s Court reversed, with costs to both parties payable out of the estate. , Order to be settled before Mr. Justice Spring on two days’ notice.