Opinion
May 14, 1964
Appeal from the Monroe Surrogate's Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Noonan, JJ.
Decree unanimously reversed on the law and facts and matter remitted to the Surrogate's Court for further proceedings in accordance with the memorandum, with out costs of this appeal to any party. Memorandum: At the hearing before the Surrogate in November, 1961 the Assistant Attorney-General objected to the payment of the fund on deposit with appellant and in substance raised the issue that the distributees residing in Latvia "would not have the benefit or use or control of the money" (Surrogate's Ct. Act, § 269-a) if it should be paid to them. The Surrogate without ruling on the objection or passing on the issue summarily directed payment to respondents, as attorneys in fact for the Latvia distributees. While the affidavit of one of these distributees contains the bald statement that they will have full control of the funds this is partially negated by a further statement from which it might be inferred that their foreign attorneys (Law Firm Iniurcolleguia) would exercise some domination and control over the moneys. In any event there should have been a trial of the issue and a determination made as provided in section 269-a of Surrogate's Court Act. Upon such hearing a further decision should be made as to the validity of the powers of attorney. Appellant alleges certain defects appearing on the face of the instruments. These claims should be passed upon by the Surrogate. (Personal Property Law, § 32-a.) Lastly, the validity of the powers of attorney should be determined in the light of Matter of Luberg ( 19 A.D.2d 370) and other applicable decisions.