MATTER OF LARSEN, N.Y. Misc., Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Albert A. Friedlander, for the petitioner. Walter J. Hadley, for the respondent. Robert W. Owens, Jr., for Biscayne Trust Company, executor named in the last will and testament of Alma Larsen.

Judges

WINGATE, S.

See more information ...

Smart Summary

Factual and Procedural Background

This opinion concerns an application for the appointment of a temporary administrator in Kings County for the estate of Alma Larsen, who was domiciled in Florida at the time of her death. An alleged last will was admitted to probate in Dade County, Florida, on February 20, 1929, and letters testamentary were issued to Biscayne Trust Company as executor. The will and related documents were recorded in Kings County pursuant to New York law. On December 10, 1929, a proceeding to revoke the probate was initiated in Florida on grounds of undue influence and lack of testamentary capacity, which remains pending. The estate includes real property valued at $180,000 in Kings County, managed by the residuary legatee nephew, Lars Monroe Larsen. The presence of personal property in New York is contested. The petitioner filed the current application on February 11, 1930, seeking appointment of a temporary administrator.

Legal Issues Presented

Whether a temporary administrator should be appointed in New York to manage the estate of a non-resident decedent whose will was admitted to probate in Florida but is subject to a pending revocation proceeding.
Whether New York courts should interfere with the administration of an estate domiciled in another state when a probate proceeding is ongoing there.
The applicability and effect of Florida probate law on the New York Surrogate's Court's jurisdiction and discretion in appointing temporary administration.
The impact of laches (delay) by the petitioner on the appropriateness of appointing a temporary administrator.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Smith, 136 Misc. 863	Establishes that courts do not take judicial notice of laws of another state and such laws must be proven as facts.	Used to explain the court's inability to accept unproven statements regarding Florida law and the necessity for proof of foreign law.
Matter of Horton, 217 N.Y. 363, 368	Probate of a will by a court of competent jurisdiction is a proceeding in rem, conclusive on the parties until vacated or modified.	Supported the conclusion that Florida probate, once validly admitted, is conclusive and not subject to collateral attack in New York.
Matter of Curtis, 194 A.D. 334 at p. 336	Surrogate's Court should be cautious in appointing temporary administrators due to potential additional expenses to the estate.	Guided the court's discretion in declining to appoint a temporary administrator absent a showing of real necessity.
Matter of Morris, 134 Misc. 374	Equitable powers of the court permit appointment of a temporary administrator as a conservator under proper circumstances.	Cited to acknowledge the court's power but found the petitioner had not made the proper showing to warrant such appointment here.

Court's Reasoning and Analysis

The court began by outlining the procedural posture, noting the Florida probate and pending revocation proceeding. It emphasized that New York courts do not take judicial notice of foreign law without proof, and no such proof was presented, limiting the court’s ability to fully assess the Florida statutes. Assuming the petitioner's characterization of Florida law is correct, the court recognized that the Florida probate proceeding is an in rem action, conclusive on all parties unless vacated or modified, thereby limiting New York’s authority to interfere.

The court further noted that even if personal property in New York existed, the primary issue was the management of real estate, which did not justify intervention absent a showing of necessity. The Surrogate’s Court has discretion to appoint temporary administrators but should do so sparingly to avoid unnecessary expenses, as supported by precedent.

The petitioner failed to demonstrate that such necessity existed. The court found that the petitioner or interested parties could have timely contested the probate in Florida or sought suspension of letters testamentary there but did not. The petitioner’s delay (laches) of over ten months before initiating contest proceedings and over thirteen months before seeking New York intervention further weakened the petition.

Accordingly, the court declined to appoint a temporary administrator, emphasizing respect for the domicile state’s probate process and the absence of urgent need for intervention. The court allowed the petitioner an opportunity to prove the foreign law properly if they believed the court misconceived its effect.

Holding and Implications

The petition for appointment of a temporary administrator is denied.

This decision directly prevents New York courts from interfering with the administration of the estate pending resolution of the Florida probate contest. It respects the principle that probate proceedings in the decedent’s domicile state are conclusive and limits New York’s intervention absent a clear necessity. No new precedent is established; rather, the ruling applies established principles of comity, judicial discretion, and procedural fairness to the facts presented.

Show full summary ...

In the Matter of the Estate of ALMA LARSEN, Deceased.

WINGATE, S.

This is an application for the appointment of a temporary administrator in Kings county upon the estate of Alma Larsen, a non-resident of this State, domiciled in Florida at her death.

It appears from the petition that an alleged last will of this decedent was admitted to probate in the County Judge's Court, Dade county, Florida, on February 20, 1929, and simultaneously letters testamentary were issued to Biscayne Trust Company, a Florida corporation, the executor therein named. On March 20, 1929, an exemplified copy of this will, the decree of probate and the letters were duly recorded in the office of this court, pursuant to the provisions of sections 44 and 45 of the Decedent Estate Law (as amd. by Laws of 1926, chap. 218).

Since amd. by Laws of 1929, chap. 230. — [REP.

The will is brief, giving one legacy of $1,000 to a named beneficiary and the entire residue to a nephew, Lars Monroe Larsen. It appoints the Biscayne Trust Company executor with broad powers of sale.

The petition alleges that on December 10, 1929, a proceeding was instituted in Florida to revoke the probate on allegations of undue influence and lack of testamentary capacity, which proceeding is still pending and undetermined. It is further alleged that there is personal property in Kings county and real estate of a value of $180,000, which is being managed, rents collected, etc., by the nephew, who is the residuary legatee. The fact of personal property in this jurisdiction is denied, but the realty is admitted.

The instant application was made on February 11, 1930, the citation being made returnable on March thirty-first.

The rather voluminous briefs of the parties are directed in considerable measure to the Florida statutes respecting proof of wills. It is, of course, well established that the court will not take judicial notice of the laws of another State, and that these must be proved as a fact. ( Matter of Smith, 136 Misc. 863, and cases cited.) Statements respecting such laws in brief are not proof. It follows that the court has nothing before it upon which a determination in this regard can be based. If it be assumed for the purposes of this preliminary determination that counsel have correctly stated the effect of these statutes, it would appear that under Florida procedure a will is presented for probate without formal notice to any one, and if proved by the subscribing witnesses is admitted and letters issued thereon unless some person has previously filed a caveat against it; that within a year subsequent to admission any party interested may institute a proceeding for revocation, in which case the issues raised are tried in usual course. It is also open to any contesting party to institute a proceeding for the revocation of letters and the appointment of a temporary administrator, pending such hearing.

Since it is well established in this State that the act of a court of competent jurisdiction in admitting to probate the will of one of its deceased citizens is a proceeding in rem ( Matter of Horton, 217 N.Y. 363, 368), it would seem inevitable, granting that the foregoing exposition of Florida law is correct, that the Florida courts, having admitted the will to probate, such action and its necessary legal consequences are not subject to collateral attack under section 1 of article 4 of the Federal Constitution. It would, therefore, follow that the will in the instant case, having been validly probated, is conclusive upon the rights of all parties until vacated or modified.

Although, as noted, the fact of the presence of personal property in this State is contested, an affirmative determination of this issue would not, in the opinion of the court, materially alter the situation presented, since the real basic contention is that a temporary administrator should be appointed to manage the real estate.

It will be noted that section 126 of the Surrogate's Court Act reads that "the surrogate may, in his discretion, issue * * * letters of temporary administration * * *."

As bearing upon the propriety of such issuance, we read in Matter of Curtis ( 194 A.D. 334 at p. 336): "Ordinarily the Surrogate's Court should be slow to appoint a temporary administrator, unless in case of real necessity, as such an appointment usually involves large additional expenses to the estate in the payment of the commissions of such temporary administrators."

Section 126, so far as here pertinent, provides that such appointment is permissible "when for any cause, delay necessarily occurs in the granting of letters testamentary or letters of administration, or in probating a will."

Although none of the expressed conditions are here present, the court is of the opinion that upon a proper showing its equitable powers are now broad enough to warrant it in appointing a temporary administrator as a conservator ( Matter of Morris, 134 Misc. 374), but it is further of the opinion that such demonstration has not here been made. On the foregoing understanding of the Florida statutes, it would have been possible for the petitioner or those united in interest with her, by the exercise of reasonable diligence, to have prevented the probate of the will in the first instance; furthermore, she or they might still obtain a suspension of the powers under the letters testamentary by an application to the Florida courts. Under such circumstances, there is no reason why the courts of this State should interfere with the orderly administration of the estate in accordance with the laws of the domicile of the decedent.

An additional consideration which inclines the court against entertaining the instant application is the laches of the petitioner. The will was admitted to probate on February 20, 1929, yet the petitioner waited for ten months less ten days before giving notice of any intention to institute the Florida contest and for over thirteen months before bringing on this proceeding. Such delay would naturally arouse some skepticism in the mind of the court respecting the imminence of the alleged threat of irreparable damage, particularly in view of the absence of any showing that there has been any material change in the conditions which have prevailed during the past year or more.

As the matter stands, therefore, the petition must be denied. If, however, the petitioner feels that in consequence of the improper presentation of the laws of Florida the court has misconceived their effect in any material respect, the matter may be brought on for hearing within ten days after service of an order to be entered hereon, at which time they can be duly proved.

Enter order, on notice, accordingly.

MATTER OF LARSEN