147 N.Y.S. 887 | N.Y. Sur. Ct. | 1914
The decedent left him surviving his father and a brother, both aliens residing in the empire of Germany; a niece residing in the borough of Brooklyn, and the petitioner, a brother of full age, residing in the county of Bronx, in the city of New York. The
It will be noted that section 2660 refers to the public administrator in the city of New York. Due to the consolidation of the various municipalities now making up
"Sec. 11. All acts and parts of acts specially applicable to the county of New York or that portion of the borough of the Bronx formerly part of the county of Westchester and annexed to the city of New York by chapter 934 of the Laws of 1895 and now in force in the borough of the Bronx and not inconsistent with this act shall continue in full force and effect in the county of Bronx, as though the said county had been in existence at the time of the passage of said acts, as though the name of the said county of Bronx had appeared in said acts and parts of acts wherever the name of the county of New York or the county of Westchester appears in said acts or parts of acts.” Section 2660 was given its present form in 1893. Laws of 1893, chap. 686. At that time the city of New York and the county of New York were coterminus, so that an act which provided for a public administrator of the city of New York in effect, though not in words, contemplated the public administrator having jurisdiction in the county of New York. Considering, therefore, the two extracts of the so-called Bronx county act herein-before quoted, it seems clear that the provisions of
This conclusion leads to a consideration of the second question involved. Under the provisions of the Decedent Estate Law, being Laws of 1909, chapter 18, constituting chapter 13 of the Consolidated Laws (art. 3, § 98, subd. 7), the father is entitled to succeed to the personal property of this decedent, being third in the classification of the relatives of the decedent to whom administration must be granted in cases of intestacy; but the father in this instance being a non-resident alien is barred from receiving letters under the Code of Civil Procedure (§ 2661). The petitioning brother as such is, therefore, not a relative entitled at present to succeed to decedent’s personal property, and the public administrator having preference after the next of kin, it becomes important, therefore, to consider whether this petitioner is a next of kin who is preferred to the public administrator. For a definition of the term ‘ ‘ next of kin ” as used in chapter 18 of the Code we must consider the Code of Civil Procedure (§ 2514, subd. 12), which is as follows: ‘ ‘ The term, ‘ next of kin, ’ includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. ’ ’ If, therefore, it is necessary that the petitioner have a present right to succeed to the personal property of the decedent or be entitled to share in the distribution of the estate at the date of the death of the intestate, and if those words are words of qualification, then under the circumstances which obtain here the letters in question cannot be issued to him.
It is unfortunate that the wording of a Code sec
The Code section in question was derived from section 27, title 2, chapter 6, part 2, of the Revised Statutes, which declared that administration in cases of intestacy shall be granted to relatives of the deceased ‘ ‘ who would be entitled to succeed to his personal estate, if they or any of them will accept the same. * * Under the wording of that section the Court of Appeals in Lathrop v. Smith, 24 N. Y. 417, held that the words “ would be entitled to succeed ” meant those persons who according to the provisions of the Statute of Distribution might be entitled to participate in the distribution of the personal estate; and that all persons who might be entitled to participate in the distribution of the estate, being the widow, relatives or those representing relatives of the deceased, have the first right to administration in the order named in the statute, and thus dissented from the construction adopted in Public Administrator v. Peters, 1 Bradf. 100. Thereafter the matter was again under consideration by an appellate court in Matter of Wilson, 92 Hun, 318. Between the time that the Lathrop case was decided and the time that Matter of Wilson was decided several changes had been made in the statute, and when Matter of Wilson was decided the Code section was in substantially the form in which it now is. After the decision in the Lathrop case the words ‘ ‘ who would be entitled to succeed to his personal estate ” were changed to the words ‘ ‘ entitled to succeed to his personal property,” and it was argued that this changed the law to such an extent that the decision in Lathrop v. Smith was no longer an authority to be
The question again came before the Surrogate’s Court of New York county in April, 1913, in Matter of Patten, 80 Misc. Rep. 482, and Surrogate Cohalan, in a well-considered opinion, held ‘ ‘ that under section 2660 of the Code of Civil Procedure administration by relatives in case of intestacy is to be given only to those relatives of the deceased having an actual right at the time of his death to share in the distribution of the estaté in the order in which the relatives so sharing are named.” This was followed by a decision of the same sur
This being the last expression of an appellate court upon the subject I deem it controlling upon the matter now before me.
It appeared upon the argument in the pending matter that the decedent and his brother had lived together in the city of New York for many years prior to decedent’s death, and it is, therefore, to be assumed that the petitioner is fully conversant with the affairs of the decedent. The entire estate, it appears, does not exceed the sum of $1,323.31. Among the papers sub
The court has no power to grant letters except such as is given to it by the statute. It cannot change the statute, but must enforce it, and leave it to the legislature to apply a remedy if in its judgment such action is necessary. I must, therefore, hold that under the provisions of section 2660 of the Code of Civil Procedure the petitioner herein is not entitled to have letters of administration issued to him on the estate of this decedent. I will say frankly that in my opinion the operation of the law in this instance works a hardship, and I would favor a construction that would permit issuance of letters to a blood relative who is most familiar with the decedent’s affairs and who has the confidence and is the choice of the only person who will receive all the decedent’s property, rather than to a public official who is a stranger to the estate and to the one entitled to inherit. But the statute being in its
The public administrator in this matter has simply done his duty, and would have been subject to criticism if he had not opposed this application. Nothing that he could do could have given the petitioner the right to receive the letters in question, because his right to them could not be created by any renunciation, withdrawal or consent on the part of the public administrator. Matter of Root, supra. For the reasons set forth the application is denied and letters will issue to the public administrator. Settle decree on two days’ notice.
Decreed accordingly