Opinion
December, 1915.
Gilbert S. Woolworth, for petitioners.
Du Bois McDermott, for administrator.
The deceased above named, who met with accidental death on the 3d day of May, 1914, was a resident alien, a subject of the kingdom of Italy.
On the 19th of May, 1914, letters of administration upon his estate were issued by this court to Germano P. Baccelli, consular agent for the kingdom of Italy, residing at Albany, N.Y.
Since such letters were issued, the administrator has collected $810.08, of which $750 was recovered in settlement of a cause of action for negligently causing the death of the deceased against one Millard. The administrator also recovered judgment for $750 against one Weeks for the same cause; that said Weeks has since died and has left no estate and the said judgment remains uncollected and uncollectible. In August, 1915, the administrator filed his final account showing the above facts, and that he has paid the funeral expenses of deceased and counsel fees and other expenses and has on hand for distribution the sum of $457.56, subject to commissions and expenses of accounting.
This fund should be distributed among the next of kin of the deceased, who are his mother and four sisters residing at Apise, province of Benevento, Italy. G. Fara Forni, consul general of the Kingdom of Italy, residing in New York city, has appeared in behalf of the next of kin and claims that the fund should be paid to him by reason of the provisions of the treaty between this country and Italy. This right has been recognized in the Surrogates' Courts of this state. Matter of Tartaglio, 12 Misc. Rep. 245; Matter of Davenport, 43 id. 573.
I am inclined to follow these decisions and grant the decree asked for unless the letters issued must be revoked by reason of a recent application therefor.
On the 30th day of November, 1915, the county treasurer of Jefferson county presented his petition claiming that he has a prior right to letters of administration upon this estate and demanding that the letters issued herein May 19, 1914, to Germano P. Baccelli be revoked and that new letters be issued to himself.
This application is made under the provisions of section 2569 as I understand it, and, by the provisions of section 2570, the surrogate may, in his discretion, refuse to entertain the proceeding and refuse to issue a citation.
I cannot see how any good can be accomplished by revoking these letters and issuing new letters; the estate is ready for decree of final distribution. The petition presented does not state any new facts or show that any other assets have been or are likely to be discovered, or allege any good reason why, at this late stage, a change in administrators should be made. Such change would involve more and unnecessary expense. The amount left for distribution is small and should not be subjected to any further expense. I, therefore, think it would be a proper exercise of discretion to decline to entertain the proceeding, and to do otherwise would work an injustice upon the next of kin. The application for a citation is, therefore, refused.
Since preparing this memorandum one Marco Paragent, claiming to be a cousin of the deceased, has presented a similar petition through the same attorney who presented the county treasurer's petition asking for the revocation of the letters issued to the Italian consular agent and the issuance of letters to the county treasurer. This petition the surrogate also declines to entertain for the reasons above stated.
Decreed accordingly.