Opinion
2008-2336.
Decided August 27, 2009.
Albanese Albanese, LLP. (William J. Nugent, Esq., of counsel) for Frederick A. Schulman, petitioner.
Reddy, Levy Ziffer (Jay H. Ziffer, Esq., of counsel) for objectant, Bonnie S. Gould, Public Administrator, Bronx County.
In this proceeding for the issuance of letters of administration, the decedent's distributees are four adult siblings, all of whom are non-domiciliary aliens residing in Peru. Two of the siblings are incapacitated. The petitioner, a New York attorney, is the designee of the two competent siblings. The Public Administrator opposes the application, contending that a non-domiciliary alien is not eligible to serve alone as an administrator; therefore, the two siblings do not have the status under SCPA 1001 (6) to be an "eligible distributee" entitled to consent to the petitioner's appointment. In support of the application, the petitioner relies upon Matter of Pesantez ( 185 Misc 2d 869). Surrogate Radigan reasoned in the Pesantez case, in light of the fact that under SCPA 707 (1) (c) the decedent's wife, a non-domiciliary alien who resided in Ecuador with their two infant children, is eligible to serve as a fiduciary along with a resident of New York State, she is also an "eligible distributee" under SCPA 1001 (6) for the purpose of giving her consent to an eligible non-distributee serving as administrator. Although the Public Administrator concedes that the Pesantez case constitutes authority for granting the petition, she contends that in the absence of appellate authority, this court should not follow that case.
The Public Administrator's alternate argument is that this is an appropriate case for the court to decline to exercise its discretion under SCPA 707 (1) (c) to appoint the New York designee as the administrator. Specifically, she argues that the holding of this court in Matter of Albagli ( 141 Misc 2d 1073) supports the denial of letters to the designee of the two competent siblings because their designee might favor them to the detriment of their two incapacitated siblings. The petitioner counters that the Albagli case supports his application, and the Public Administrator is relying upon
a portion of the decision that is no longer applicable as a result of an amendment to SCPA 1001 (6), effective January 1, 1994 (L 1993, ch 514, § 27).
SCPA 707 (1) provides that letters of administration may issue to any person or entity that is not ineligible and then, in subdivisions a through e, lists those who are ineligible. Although SCPA 707 (1) (c) provides provides that a non-domiciliary alien may serve as a fiduciary "with one or more co-fiduciaries, at least one of whom is resident in this state," it also provides that any such appointment "shall be made by the court in its discretion." SCPA 103 (18) provides that any person is eligible to receive letters provided that they are not disqualified on any grounds set forth in SCPA 707. SCPA 1001 (6) provides, in pertinent part, that an eligible non-distributee may be appointed the administrator upon the "consent of all eligible distributees."
The primary function of the Public Administrator is to serve as a fiduciary when any New York domiciliary dies intestate without being survived by a person eligible to receive letters (see SCPA 1112). SCPA 1001, in establishing the order of priority for granting letters of administration, in essence provides in subdivision 8 that the Public Administrator is the administrator of last resort, to be appointed only where letters may not issue under subdivisions 1 through 7 to an eligible distributee or to a non-distributee on the consent of all distributees who have the capacity to give their consents. In accord with the same statutory scheme, SCPA 707 essentially provides that all distributees are eligible unless they are infants, they lack the requisite capacity, their past conduct establishes their unfitness, or where there is no fiduciary who would readily be subject to court sanction in the event that a court order was disobeyed, as would be the case if a non-domiciliary were to serve as the sole fiduciary. Nonetheless, SCPA 701 (1) (c) provides that even though the court might have difficulty in sanctioning a disobedient non-domiciliary fiduciary, this concern may be alleviated by requiring that the non-domiciliary serve with a New York fiduciary who would readily be subject to court sanction.
"It is an elementary rule of interpretation that all parts of an act are to be read and construed together to determine the legislative intent, and that all should be harmonized with one another" (Levine v Bornstein, 4 NY2d 241, 244). In light of the clear statutory scheme favoring and expanding the right of distributees and their designees to be appointed as the administrator, the court finds no basis for diverging from the result reached in Matter of Pesantez ( 185 Misc 2d at 869). Specifically, the court holds that as the decedent's competent siblings, pursuant to SCPA 707 (1) (c), are eligible to serve as an administrator along with a New York resident, they are, pursuant to SCPA 1001 (6), "eligible" distributees who are granted the right to consent to the appointment of a New York resident to serve as the sole administrator (see SCPA 103; Matter of Kerr, 167 Misc 2d 877, 879; Matter of Albagli, 141 Misc 2d at1073).
The precise holding of Matter of Albagli ( 141 Misc 2d at 1073) is that the decedent's brother, a non-domiciliary and the decedent's only distributee, could designate a New York domiciliary to serve as the sole administrator in light of the fact that the brother was eligible to serve as a co-administrator with his designee. The Public Administrator's reliance upon the dicta in Albagli ( 141 Misc 2d at 1076 — 77), stating that the court would not be inclined to exercise its discretion in favor of appointing a non-domiciliary alien as a fiduciary unless "all of the distributees are competent adults and have consented," is misplaced. This is so because, at the time of that decision, SCPA 1001 (6) provided that all the distributees were granted the right to consent to a non-distributee serving as the administrator only if all the distributees themselves were eligible.
Here, there is no more reason to be concerned that the petitioner is likely to favor those who designated him to the detriment of their incapacitated siblings, than there is in a case where all distributees are domiciled in New York and some are competent while others are not. As is the case in any estate where there are incapacitated distributees, the court will require that the administrator post a bond, and a guardian ad litem will be appointed for the incapacitated person in any future accounting or other appropriate proceeding. The court appreciates that there are numerous situations where the Public Administrator is called upon to protect the rights and the property of those who cannot protect themselves. Nonetheless, there are no public policy concerns favoring the appointment of the Public Administrator over a New York attorney, in good standing, selected by all eligible distributees. To the contrary, competent distributees should be allowed to select the person they want to entrust with fiduciary obligations. Furthermore, where those distributees designate an attorney to be the administrator, they have the option of negotiating with counsel as to the total compensation to be paid for commissions and legal fees.
Accordingly, the objections are dismissed, and letters of administration shall issue to the petitioner upon his filing a bond in the penal sum of $150,000.
Settle decree.