195 Misc. 742 | N.Y. Sur. Ct. | 1949
The decedent died a citizen and resident of this county. His mother, a citizen of Denmark and resident therein, petitions for the issuance of letters of administration upon his estate to a domestic trust corporation. The right so to do is based upon chapter 221 of the Laws of 1948, which amended section 100-a of the Banking Law. The provisions of that section are discussed by Surrogate Delehantt in Matter of Ernst (193 Misc. 177).
The Surrogate’s Court Act and its predecessors, the Code of Civil Procedure and the Revised Statutes, have charted the
Some of the provisions of the Surrogate’s Court Act are discretionary (Matter of Cornell v. Delehanty, 173 Misc. 483); other provisions are mandatory, including section 118 (Matter of Campbell, 192 N. Y. 312; Matter of Kelly, 238 N. Y. 71, 78), except where otherwise specifically provided therein (Matter of Kassam, 141 Misc. 366, 378, affd. 235 App. Div. 609). Section 118 provides “ Administration * * must be granted to the persons entitled to take or share in the personal property, who are competent * * The word “ competent ” has been construed as excluding those persons who are disqualified under section 94 of the Surrogate’s Court Act (Matter of Reit, 183 Misc. 261, 262; Matter of Fichter, 155 Misc. 399, 402). Subdivision 3 of section 94 provides that a person who is an alien, not an inhabitant of this State, is not competent to serve as an administrator. The nominee of an alien nonresident possesses no greater right than his nominor (Matter of Findlay, 253 N. Y. 1, 13; Matter of Franko, 169 Misc. 356); neither does an assignee of a sole distributee nonresident alien (Matter of Kassam, supra).
There is no inherent right to administer. It is purely statutory (Matter of D’Agostino, 88 Misc. 371, 375). Section 118 further provides that administration may be granted to a competent person not entitled upon the consent of all the persons entitled to take or share in the estate whether within or without this State and competent and that a trust company shall be
The general power of a trust company to act as a fiduciary is granted under section 100 of the Banking Law, “ subject to the restrictions and limitations contained in this chapter ”. Subdivision 4 of that section permits it to be appointed and accept the oEee of administrator. Section 100-a regulates to some extent the appointment and qualification of trust companies as fiduciaries, their trust administration and accountability to the courts of their appointment. Many of these provisions are equally applicable to individual fiduciaries and their counterparts are in the Surrogate’s Court Act, Civil Practice Act and other statutory provisions. There are other provisions in section 100-a which, by their nature and the financial responsibility of trust companies, are solely applicable to a corporate fiduciary, freedom from the requirement of posting a bond (subd. 5) and filing an oEcial oath (subd. 7). These provisions indicate that the Legislature intended the Banking Law to be complementary but not independent of the Surrogate’s Court Act.
Paragraph (a) of subdivision 2 of section 100-a of the Banking Law (as amd. by L. 1948, ch. 221) provides “ Any trust company may be appointed * * * administrator * * * on the application or consent of any person acting as such * * * or entitled to such appointment irrespective of whether such person would himself be disqualified from acting by reason of his being an alien or non-resident of this state, and in the place and stead of such person, or such trust company may be joined with any person so acting or entitled to such appointment; * * * ”. (Emphasis supplied to indicate matter added in 1948.) Under that subdivision it appears that a trust company may be appointed as administrator, coadministrator or administrator de bonis non.
Administration de bonis non, in the case of a living administrator, could be obtained upon the petition of the individual administrator “ acting as such ” and praying that the trust company be appointed in his “ place and stead ” in a proceeding wherein he seeks permission to resign and account for his administration. If the petition be entertained, the administra
If the administrator so applying were one of several distributees, his petition designating the trust company as his successor would, in the new proceeding, be the equivalent of a renunciation of his prior rights to letters and a consent to the appointment of the trust company. If all of the other distributees are competent and consent in writing (Matter of Murphy, 87 Misc. 564) the trust company could be appointed (Surrogate’s Ct. Act, § 118). If, however, any of the other distributees are not competent to receive letters by reason of section 94 of the Surrogate’s Court Act, then the trust company could not be appointed (Matter of Reit, 183 Misc. 261, supra).
The Banking Law (§ 100-a, subd. 2, par. [a]) further provides “ but such appointments shall be made upon such notice, as is required by law, to the persons interested in the estate * * * and on the consent of * * * persons interested in the estate * * * as the * * ® surrogate * * * making the appointment shall deem proper.” (See Matter of Ernst, 193 Misc. 177, supra.) The expression ‘ required by law ” as used in statutes refers exclusively to the statute law of the State (Board of Education v. Town of Greenburgh, 277 N. Y. 193, 195; Brinckerhoff v. Bostwich, 99 N. Y. 185, 190). The Surrogate’s Court Act regulates the mode of proceeding in any manner connected with the estate of a decedent and to the grant of letters of administration (Surrogate’s Ct. Act, § 315). Section 120 of that act prescribes who shall be cited in a proceeding for the appointment of an administrator and section 121-a, the persons who may be required to be served with notice of application for letters.
Subdivision 10 of section 314 of the Surrogate’s Court Act defines the expression “ persons interested ”. Where the sole next of kin is a nonresident alien, the Public Administrator is a person interested as he is entitled to letters of administration (Matter of Kassam, 141 Misc. 366, affd. 235 App. Div. 609, supra). Section 136-n of the Surrogate’s Court Act confers upon the Public Administrator authority to collect the property of persons who die intestate and not survived by competent adult persons entitled by law to act as their personal representatives;
A trust company could be appointed administrator upon the application and consent of a competent sole distributee, he being himself “ entitled to such appointment,” both under the Surrogate’s Court Act and the Banking Law. Likewise, an administrator, competent to retain his letters, could have a trust company joined with him as coadministrator (Matter of Fichter, 155 Misc. 399, supra).
The phrase inserted by chapter 221 of the Laws of 1948 reads “ irrespective of whether such person would himself be disqualified from acting by reason of his being an alien or nonresident of this state ”. An alien resident of this State is competent to receive and retain letters, as is also a nonresident citizen, but an alien nonresident is not so entitled (Surrogate’s Ct. Act, § 94, subd. 3). It is, therefore, apparent that no change would be effectuated in the law by giving to the word “ or ” its disjunctive connotation, but by converting the word “ or ” into the conjunctive “ and ” (Matter of Kennedy, 151 Misc. 292, 294) some effect may be given to the amendment.
The words “ disqualified from acting ” is susceptible of different interpretations, one that the person “ acting as such (administrator) ” is now incapable of acting, upon objection raised under subdivision 1 of section 99 of the Surrogate’s Court Act, by reason of his nonresidence and alienage; two, that a person who would otherwise be “ entitled to such appointment ” were it not for his alienage and nonresidence, shall now be entitled to designate and have appointed on his application
The construction sought by the petitioner is somewhat analogous to the right which is apparently accorded to “ any party interested in the estate ” under paragraph (b) of subdivision 2 of section 100-a to request the appointment of a trust company as administrator c. t. a. A legatee is a person interested in an estate (Surrogate’s Ct. Act, § 314, subd. 11) but in Matter of MacMillan (133 Misc. 570) letters of administration c. t. a. were denied to a trust company, upon the petition designating it, as the petitioner as well as all other legatees, were alien nonresidents and were themselves incompetent to receive letters.
The predecessor of paragraph (a) of subdivision 2 of section 100-a was subdivision 2 of section 188 a portion of which, concerning commissions, was the subject of construction in Matter of Lanier (271 N. Y. 120). It was there held that such subdivision, insofar as commissions were concerned, was aimed at a situation where a trustee seeks to be relieved of the details of the trust and arranges for the substitution of a trust company or where a trust company is brought in as cotrustee to share the burden of the duties. The court pointed out that the successor trustees, a trust company and an individual, were not appointed on the application or with the consent of a trustee “ acting as such * * * or entitled to such appointment and in the place and stead of such person ” nor was it “ joined with any person so acting or entitled to such appointment.” The inference from that decision is that the word ‘ acting ’ ’ is used in the sense of an existing fiduciary, and that the expression “ entitled to such appointment ” carries with it the connotation of a right “ to act ” in the future, upon the application and designation of the person so entitled.
While the Banking Law authorizes trust companies to be fiduciaries, their appointments in this court must be made in accordance with the Surrogate’s Court Act. That act and the decisions rendered thereunder guide and restrict the court in the exercise of its powers, in the absence of other definite statutory provisions which permit no other conclusion. Booted deep
Proceed accordingly.