Opinion
December 10, 1970
Appeal from the Chautauqua County, Surrogate's Court.
Present — Goldman, P.J., Marsh, Witmer, Gabrielli and Henry, JJ.
Order insofar as appealed from unanimously modified by the addition of a decretal paragraph directing issuance of a supplemental citation to be served on all persons interested in the estate and as so modified affirmed, without costs. Memorandum: The Surrogate properly denied respondent's motion to dismiss the petition herein, and his order suspending respondent from the exercise of his fiduciary powers pendente lite was a proper exercise of discretion. The Surrogate erred, however, in holding on the authority of Matter of Parker ( 33 Misc.2d 780) that persons interested in the estate were not required to be cited. In that case the petitioner, claiming to be the intestate's wife, sought to remove the administratrix who also claimed to be his wife. The outcome of the proceeding depended solely upon a determination of which one of them was married to the intestate at the time of his death. The wishes of the distributes could have no relevance to that issue and the Surrogate properly held (p. 781) that "No other issue is before the court and there are no other persons who are necessary parties to the proceeding." Where, as in this case, removal is sought on the ground of misconduct, all persons having an interest in the administration of the trust should have an opportunity to be heard. Controlling here is Elias v. Schweyer ( 13 App. Div. 336, 338) wherein the court in holding that the remaindermen were necessary parties to an action brought by three life beneficiaries and one of two surviving trustees to remove the other trustee, said: "It needs no argument or authority to show that all persons interested in a trust under a will are not only proper but necessary parties to an action to remove a trustee." The relevant statutory sections are in accord with the decision in Elias v. Schweyer ( supra). SCPA 711 provides in pertinent part: "[a person interested] may present to the court having jurisdiction a petition praying for a decree suspending, modifying or revoking those letters and that the fiduciary may be cited to show cause why a decree should not be made accordingly". Although that section expressly mentions only the fiduciary as one to be cited, by its use of the term "petition" the statute incorporates previous sections that have laid out the general requirements. SCPA 304 provides: "In addition to such other requirements as may be applicable to the petition in a particular proceeding, a petition must substantially set forth: * * * 3. So far as they can be ascertained with due diligence, the names and addresses of all persons interested". "Persons interested" is defined in SCPA 103 (subd. 36) to encompass "Any person entitled either absolutely or contingently to share as beneficiary in the estate." By stating that a fiduciary must be cited, SCPA 711 imposes a useful additional requirement; and unlike other provisions of the statute (e.g., SCPA 2004), SCPA 711 contains no suggestion that the general provisions of 304 are inapplicable. The rule requiring citation to all interested parties protects the fiduciary from multiple suits involving the same allegations and protects the rights of interested parties to be heard. The failure to cite the necessary parties does not require dismissal of the petition. They can now be cited and when they are brought into court the issues may be decided on the merits. ( Matter of Bartells, 109 App. Div. 586, 588.)