In re Campbell's Estate

Robert E. Campbell, a resident of the county of Erie, died intestate in the city of Buffalo on the 27th day of May, 1907. He left hjm surviving no widow, descendant, or parent, but a brother, the petitioner, who resides in the state of California, and nephews and -nieces, none of whom reside in the state-of New York. He left nearly $50,000 in personal property. On the 31st day of May letters of administration of the goods, etc., of the decedent were issued to Edward N. Pfohl upon his petition, and who was a creditor of the intestate to the extent of $200, and Pfohl is now administering the trust. No citation was issued in the proceeding, and the appellant did not know of the death of his brother until two weeks after it occurred, and he had no knowledge of the issue of letters until some time after they were granted. On the 12th day of July he caused his petition to be filed in the Surrogate’s Court of Erie county,. asking for the revocation of the letters already issued, and, after a. hearing, the application was denied. Section 2660 of the Code of Civil Procedure provides:

“Administration in case of intestacy must be granted to the relatives of the deceased * =•• * who will accept the same, in the following order”—giving nine different specifications.

There is no distinction made in this section between resident and nonresident next of kin of the intestate. A similar provision was contained in the Revised Statutes, and it was held that the order of priority-fixed in the statute was maintained, even though some of the next of kin be nonresidents of the state, if citizens of the United States (Matter of Page, 107 N. Y. 266 , 270, 14 N. E. 193 ; In re Williams, 44 Hun, 67 , affirmed 111 N. Y. 680 , 19 N. E. 284 ), and there has been no change of the rule by the Code of Civil Procedure (Libbey v. Mason, 112 N. Y. 525 , 20 N. E. 355 , 2 L. R. A. 795 ). The court, in the case last cited, say (page 528 of 112 N. Y., page 356 of 20 N. E. [ 2 L. R. A. 795 ]):

“The plain inference and obvious meaning is that nonresidence excludes only when the claimant is not a citizen of the United States; but, where that citizenship exists, the nonresidence is immaterial, and has no effect upon the priority of right. The rule is not changed by section 2662 of the Code, which does not repeal by implication the right of priority given by the Revised Statutes.”

And this principle is further supported by section 2661, which defines those incompetent to receive letters, including “a person not a citizen of the United States, unless he is a resident of the state.” The appellant, therefore, within this imperative requirement of the Code, was first entitled to the issue of letters because he was the nearest relative of the intestate residing within the United States, unless there is some other provision modifying or nullifying this statute, which is the only one defining the order of priority of relatives to administration.

It is contended that the right of a nonresident next of kin may be wholly destroyed if the surrogate dispenses with citation to him; and this contention is founded upon section 2663 of the Code of Civil Procedure, which, so far as pertinent, is as follows:

“Every person, being a resident of the state, who has a right to administration> prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any or all - other persons interested in the estate, whom he thinks proper to cite.”

Where he dispenses with citation, a decree may be entered and letters issued. The authority to make the decree and issue letters was construed in Libbey v. Mason, supra, and the provision was then under section 2662 of the Code of Civil Procedure. The court used this language (page 528 of 112 N. Y., page 357 of 20 N. E. [ 2 L. R. A. 795 ]):

“Doubtless this clause was only intended to mean that where the applicant had the first and paramount right, and none existed prior or equal to his, the surrogate might act at once, because citations to any one would be useless. But this innocent meaning is carried beyond its purpose by the phraseology employed, and has led to the logic that since it is not necessary to cite a nonresident, whatever his priority of right, the surrogate may disregard that right, and it is thereby lost. That he may disregard - it seems to be true. That it is thereby lost, or ceases to exist, or has suffered a repeal, does not

at all follow. It remains unchanged. The remedy for its enforcement has been modified, but the right itself has not been destroyed. The surrogate may act without a citation to the nonresident citizen, and disregard his right because he is not present to assert it. Whether the letters so issued, although regular under the Code, would stand' against an application for their revocation by the nonresident citizen having the prior right, it is not necessary now to determine.”

It will be observed that' the court did not pass upon the precise question we are now considering, and yet the trend of the opinion is that the right to administer is not destroyed by the granting of letters where no citation has been issued, and there has been no renunciation or .waiver. I think the issue of letters without issuing a citation to nonresident next of kin does not have the effect of absolutely cutting off their right to letters of administration. Rights in the nature of property rights may not be summarily disposed of without notice. The right of administration is one of this class. The commissions allowed for administering a large estate, the privilege of guarding and protecting property in which one may have a large interest, may make administration of the estate very important to the next of kin. Undoubtedly the discretion to dispense with citation by the surrogate is often very beneficial. In a small estate, where the next of kin are nonresidents, the surrogate can safely assume that they will never appear to assert their rights. Ifjdie estate is likely to be expended in the payment of debts or any other reason exists indicating that those first entitled will probably not desire to avail themselves of the right to administration, the surrogate may dispense with citation to them. This ex parte exercise of discretion as a matter of convenience, to their exclusion, does not destroy the right which the statute has vested in the next of kin. The letters issued are valid until revoked; but, if those of prior right and who are not disqualified and who have not waived or renounced appear and ask for the revocation of letters already issued, the surrogate is bound to grant the application. The priority of administration is regulated according to the pecuniary interest of those entitled to participate in the estate of the intestate, except that the widow is first entitled, even though her interest in her husband’s estate may be less than that of the next of kin, and a like preference is accorded to a husband on the estate of his deceased wife. The language of section 2660 is:

“To the relatives of the decedent entitled to succeed to his personal property.”

The surrogate has no discretion to ignore the order of priority unless by reason of one of the grounds of incompetency specified in the statute. Section 2661. Coope v. Lowerre, 1 Barb. Ch. 45 ; O’Brien v. Neubert, 3 Dem. 156 ; Matter of Wilson, 92 Hun, 318 , 322, 36 N. Y. Supp. 882 ; 18 Cyc. 83. It is recognized as a right dependent upon the right to share in the personal estate. In fact, the order of priority is preserved so carefully that, where several persons are equally entitled to administer, the one to whom letters are issued may have a stranger join with him in the administration. Section 2660. In this way, even though he may not be able personally to obtain the necessary bond or may hesitate to assume alone the administration of a large estate,

If I am in error in the position I have taken, I think the surrogate abused his discretion in not issuing citation. Again, the original petition filed estimates the value of the personal estate of the intestate at the sum of $15,000. Subsequent to the issue of letters to the respondent he ascertained that the property amounted to about $50,000, and another bond was given. It might be the surrogate would have required a citation to issue had he been apprised of the value of the property in the petition filed by the respondent. The exercise of his discretion in determining whether a citation shall issue must depend to a large degree upon the value of the estate. His statement in his opinion that he would not have been influenced by the fact is no sufficient answer. He was then seeking to justify his refusal to revoke. When the correct amount of the property was made known to him, he should have caused notice to be served on the appellant. Upon appeal from the decision of a surrogate on the facts, the Appellate Court has the same power to determine the facts which the surrogate possessed. Section 2586, Code Civ. Proc. A reasonable consideration of the rights of the next of kin required the revocation of the letters issued to the respondent.

Order of the surrogate should be reversed, with costs of both parties payable out of the estate.

Order reversed, with costs of both parties payable out of the estate. All concur, except McUENNAN, P. J., and ROBSON, J., who dissent.

It seems to be conceded that the person to whom the letters were issued is in every way properly qualified to faithfully perform the duties of his trust, and that his appointment was not procured by reason of any false suggestion of fact is also unquestioned.

The only question presented on this appeal is whether the surrogate should have revoked letters of administration concededly regularly granted to respondent, a creditor of deceased, on the application of appellant, a nonresident brother of deceased, made after such letters had been so granted, upon the single ground that appellant had by statute a prior right to such letters. The question now presented does not appear to have been directly decided by any court in any reported decision prior to that delivered by the surrogate in the case now before us. The only conclusion to be drawn from that fact would seem to be, however, that such an appointment is so clearly unassailable that

Service of citation on appellant was duly and legally dispensed with by the surrogate’s direction, and, he not having appeared to assert his right to letters until after respondent had been regularly appointed, I fail to see upon what ground, on other than one or more of those specified in section 2685 of the Code, no one of which appears in this case, his appointment can be disturbed.

The order should be affirmed.