202 Misc. 751 | N.Y. Sur. Ct. | 1952
The court is satisfied that the propounded instrument was executed in compliance with the requirements of section 21 of the Decedent Estate Law and at the time of such execution decedent was of full age, competent in all respects to make a will and free from any restraint or undue influence.
The sole question remaining is whether letters testamentary shall issue to the nominated executrix, the petitioner. It is contestant’s claim that petitioner is incompetent to serve because of the provision of section 94 of the Surrogate’s Court Act, which forbids the issuance of letters testamentary to a felon. The facts upon which such claim is based are undisputed. On
A member of the New Jersey Bar testified that in that State the crime of bigamy was graded as a misdemeanor at the time the offense was committed by the petitioner, but that on January 1, 1952, it was reclassified as a high misdemeanor. It is contestant’s contention that regardless of the title characterizing the said crime in New Jersey, it is a felony in this State, and, therefore, letters may not issue to the petitioner. On the other hand, it is petitioner’s contention that as she was not convicted of a crime graded as felony she is not a felon and, in any event, letters may not be withheld from her as the crime was not committed within this State. As the court understands petitioner’s argument, it is that a person convicted of a crime or crimes in any or all of the other forty-seven States which would be felonies in this State would still be entitled to qualify as a fiduciary in this State.
The crime of bigamy was not a felony at comm on law, and as the grade of petitioner’s offense, when committed, was not statutorily stated, it was a misdemeanor under New Jersey law (State v. Warady, 78 N. J. L. 687, 691). The punishment for such crime was then fixed as a fine not exceeding $1,000 or imprisonment not exceeding ten years or both (N. J. Stat. Ann. § 2:113-1). The statutes then also provided that crimes specifically graded and without fixed punishments were punishable, in the case of misdemeanors, by fine not exceeding $1,000 or imprisonment not exceeding three years, or both, and in the case of high misdemeanors, by fine not exceeding $2,000 or imprisonment not exceeding seven years, or both (N. J. Stat. Ann. § 2:103-6 and 2:103-5, respectively). The permissible imprisonment sentence for bigamy, therefore, exceeded that which could have been imposed if it had been classified as a high misdemeanor and without specific provision for punishment. Bigamy in this State is a felony punishable by imprisonment in a penitentiary or State prison for not more than five years (Penal Law, §§ 340, 342, subd. 6).
A facet of the problem was considered in O’Brien v. Neubert (Matter of O’Brien) (3 Den. 156) and letters of administration issued to the decedent’s son who had been convicted in New Jersey of the crime of larceny. Our statutes then provided
In Matter of Canter (146 Misc. 123) objections were interposed to the issuance of letters testamentary to one of the nominated executors, as he had been convicted in a United States District Court of a Federal offense graded as a felony. Under the laws of this State, a similar offense was a misdemeanor (p. 125). He was thereafter pardoned by the President of the United States. Even had he been convicted of a crime which under the laws of this State would have been a felony, his subsequent pardon removed his disability to act as an executor (Matter of Raynor, 48 Misc. 325 and cases cited). The objections were dismissed.
In Matter of Cohen (164 Misc. 98) one of the nominated executors had been convicted of making a false oath in a bankruptcy proceeding, a felony under the laws of the United States. Objections to his appointment were dismissed as his conviction was not one punishable by death or imprisonment in a State prison. The opinion does not disclose whether the offense, perjury, would have been graded as a felony or misdemeanor under article 158 of the Penal Law, had it been committed in a proceeding in a court of this State, or whether it would have been cognizable at all under our laws. The decision was affirmed (254 App. Div. 571, 278 N. Y. 584).
In Matter of Donegan (282 N. Y. 285, 291-292) it was observed that “ More recently, in Matter of Cohen (supra), this court affirmed a determination that the word ‘ felon ’ as used in subdivision 4 of section 94 of the Surrogate’s Court Act, in disqualifying certain persons from holding fiduciary offices, does not include one rendered a felon by Federal statute who was not such under New York law.” The sentence preceding that reads, “ Likewise, in construing the terms of a commutation of
In addition to the three situations listed in the Donegan case, there is also a fourth situation, to wit: where the offense is a misdemeanor under the Federal law but a felony under our law. It is wholly probable that such situation was envisaged by the court in the light of its conclusion at page 290, that “ Thus the classification of crimes into felonies and misdemeanors represents the view which the given [emphasized in original] jurisdiction takes of the gravity of the offense ”, and considered a fourth listing as superfluous, as an offense must be judged by our standards. That test makes the crime of bigamy committed by the petitioner in New Jersey and there graded as a misdemeanor, a felony in this State. No valid reason is apparent why the aforesaid categories are not as equally applicable to convictions for crimes in other States.
The principle that the crime must be a felony both under the Federal and our law before additional effect to the crime may be imposed upon the convicted person has also been followed with respect to convictions in other States of crimes which would be felonies here (Matter of Stein, 199 App. Div. 673; Matter of Innes, 176 App. Div. 902; Matter of Sullivan, 246 App. Div. 393; Penal Law, § 1941). Added support for that principle is
In all of the cited instances there has been uniformity of consequences in this State attendant upon, or prescribed for, conviction of a crime, the equivalent of a felony in this State. That is so whether the conviction be for a crime committed in this State, another State or under the Federal law. To hold that the petitioner’s conviction of the crime of bigamy in New Jersey does not make her a “ felon ” within the provision of subdivision 4 of section 94 of the Surrogate’s Court Act would accord to her not “ equal (emphasis supplied) protection of the laws of this state ” (N. Y. Const., art. I, § 11), but greater protection and would result in discrimination against all persons convicted either in this State, or Federal courts, of crimes which are felonies. Such a result seems unconscionable.
In Matter of McKinney v. Hamilton (282 N. Y. 393, 397) the definitions with respect to crime were restated: “ A felony is
Consonant with all of the foregoing principles and the holding in the Matter of Donegan (supra) the petitioner, having been convicted of a crime, which is a felony in this State, is, therefore, a felon within both the letter and spirit of subdivision 4 of section 94 of the Surrogate’s Court Act and she is, therefore, disqualified to receive letters.
Proceed accordingly.