Opinion
March 9, 1971
Magavern, Magavern, Lowe Beilewech ( Ward E. Dahlgren of counsel), for petitioner.
The petitioner has requested that letters of administration with the will annexed on the estate of John Alfred Bolton, deceased, be granted to petitioner for the purpose of disposing of unadministered property and assets of the estate. It appears that the decedent died on or about May 25, 1970 leaving a last will and testament which was probated in this court on August 26, 1970. Letters testamentary were granted to Rudolph G. Hills pursuant to the terms of said will and said executor qualified and continued to act as executor until his death on January 12, 1971. Petitioner now contends that, because it is sole beneficiary under the last will and testament of the said deceased, letters of administration with the will annexed should issue to said petitioner without bond.
Ordinarily a corporation will not be authorized to act in a fiduciary capacity unless it is authorized to do so by its certificate of incorporation or by the Membership Corporations Law. A specific provision, however, contained in SCPA 1418 (subd. 4) is obviously intended for the purpose of enabling a corporation to administer an estate in which it has an interest even though such corporation may not otherwise qualify as a fiduciary. Subdivision 4 of section 1418 provides as follows: "A corporation which is the sole or residuary legatee may act as administrator with will annexed although not specifically so authorized by its charter or by any provision of law." Such a statute of course must, in the absence of plain indication to the contrary, be held to apply only to corporations created by this State. ( Matter of Duelund, 177 Misc. 569.)
Under the circumstances, the petitioner is entitled to letters of administration with the will annexed. However, the court must be satisfied prior to the issuance of such letters that the corporation is a domestic corporation and that there are no debts due and owing by the estate. Upon such showing and upon the required oath and designation to be filed by petitioner it is the decision of this court that letters of administration with the will annexed shall issue to the petitioner without bond.