In re the Judicial Settlement of Account of Davenport, 126 N.Y.S. 693

In re the Judicial Settlement of Account of Davenport

126 N.Y.S. 693 | N.Y. App. Div. | 1910

Thomas, J.

Upon his petition it was in 1903 ordered that letters of administration issue to the public administrator of the county of Kings, and it was done. The petition shows that the decedent, leaving assets in the county of Kings, did not leave widow, descendant, or next of kin residing in this State. Such facts, if true, entitled the petitioner to letters. (Code Civ. Proc. § 2669.) The Attorney-General was not notified of this application, or of an order appointing a referee to take proof .of the rights and interests of persons claiming the estate, the report of the referee, or tiie final decree, and asks to set aside the order of reference and whatever resulted from it. The-Attorney-General asserts his right by virtue of section 2663 of the Code, that “ Where the surrogate is unable to ascertain, to his satisfaction, whether the decedent left, surviving him, any person entitled to succeed to his estate, a citation must be issued directed generally to all creditors of, and persons interested in the estate, and also to the Attorney:General, and the public administrator of the proper county, requiring them to show cause why administration should not be granted to the petitioner.” This section relates to the earlier sections which have to do with usual applications for letters of administration, and -is intended to point out the surrogate’s powers and the observable practice in notifying parties interested and in. appointing an administrator. The essential purpose of the statute is to grant letters to the person first entitled, and to command that, if the petitioner has not that status, the surrogate shall cite those superior or equal in right, and superadds a discre*43tion to cite persons interested in tlie estate. But it may happen that the surrogate cannot ascertain whether there is “ any person entitled to succeed ” to the estate. Then other persons should he cited and heard. ' Such are creditors, the Attorney-General, the public administrator. Bnt “ Where it. is not necessary to cite any person, a decree, granting to the petitioner letters, may be made on presentation of the petition.” In the present case the surrogate presumptively was satisfied that there were persons entitled to succeed to the estate, and that they did not live in the State of New York. This entitled the public administrator to letters. He petitioned and convinced the court of his right. Ho doubt arose requiring solution that demanded notice to, hearing of and advice by the Attorney-General. So the letters were duly issued to the public administrator. The next step was the settlement of the administrator’s account. The Attorney-General was duly omitted from the citation, and 1 discern no occasion for his presence. Then reference was made to take proof of the rights of the claimants. The Attorney-General asserts a right to notice of this order by virtue of section 2747 of the Code. This section requires that when the person entitled to a legacy or distributive share is unknown, the decree must direct that the amount be paid into the treasury of the State for the benefit of whosoever may be entitled, to be ascertained by a proceeding in court, upon notice to .the Attorney-General. The reference, under .present decisions, does not fall within that section. How is it to be ascertained whether the “person entitled to a * * * .distributive share is unknown ? ” That fact must appear before the deposit of the money in the treasury of the State. So the reference Avas had to learn whether there were known or unknown parties entitled to share, and it Avas found that the maternal next of kin were known, and the paternal next of kin were entirely ■ unknown and unascertainable; and so the money, by order of the surrogate, was deposited in the State treasury, awaiting application for it under section 2747. The Attorney-General has not been deprived of any day in court to which he is entitled, and the order should be affirmed.

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Order of the Surrogate’s Court of Kings county affirmed, with ten dollars costs and disbursements.