81 Misc. 2d 807 | N.Y. Sur. Ct. | 1974
In this proceeding to judicially settle the account of ancillary executors of a decedent who died a resident of Florida, all issues have been disposed of by previous decision, except the fee of the attorney for the executor. This fee is fixed and allowed in the amount requested.
The court is constrained to comment upon the unfortunate fact pattern present in this matter as a result of the laws of the State of Florida. Decedent was a woman of mature years. She had resided for most of her life in the State of New York. At the time of her death, the bulk of her estate was located in New York, although decedent herself had become a resident of the State of Florida. Decedent’s last will and testament which was executed on October 19, 1967 clearly reflects an intent to have her husband, her attorney and her accountant all act as primary coexecutors of her estate to the maximum extent possible under the applicable laws of each jurisdiction which would be involved in the administration of her estate. As indicated in an earlier decision rendered with reference to this estate, this court would have entertained an application for original probate pursuant to SCPA 1605 if the proponent had chosen to so proceed (Matter of Harrison, NYU, June 12,
At best, the Florida statute is inequitable. It is the opinion of this court that the residency restrictions it places upon its citizens in naming executors are not only inequitable but are offensive to the spirit and letter of the United States Constitution. The Supreme Court of the United States has looked with disfavor upon States imposing preconditions to residency that constitute a restriction on the free movement of parties from State to State. In Sugarman v Dougall (413 US 634), the court held prohibitions against aliens holding competitive civil service jobs to be constitutionally offensive. It is difficult to conceive that prohibiting an alien from taking a competitive civil service examination is constitutionally offensive and prohibiting a nonresident from serving as an executor would not also be unconstitutional.
In Shapiro v Thomson (394 US 618, 630-631) in striking
The understandable desire of the State of Florida to promote its economy by insuring the maximum of business for both its banking institutions and attorneys should not be enhanced by interference with the right of new residents who migrate to seek the benefit of its gentle climate to select the executors of their choice. It is hoped that legislative wisdom will correct this unfortunate restriction without the necessity for some estate to assume the burden of a search for judicial relief that may extend from the courts of Florida into our Federal system.
Decree signed.