Opinion
July 2, 1964
Appeal from an order of the Surrogate's Court, Ulster County, directing the Comptroller to pay over to respondents' attorneys in fact certain sums of money held for them as distributees of the estate of Maciej Saniuk. The sole question presented here is the correctness of the Surrogate's finding that the respondents, citizens of the Soviet Union, "would have the benefit or use or control of the money due (them)". (Surrogate's Ct. Act, § 269-a.) We construe section 269-a not as mandatory but as merely giving the Surrogate broad discretion in situations such as the present one to effectuate the decedent's intention. (See Matter of Braier, 305 N.Y. 148; Matter of Doktor, 18 Misc.2d 223.) Here the Surrogate had before him, in addition to a treasury department regulation stating that there is no reasonable assurance that payees of checks and warrants in the Soviet Union will receive them and be able to negotiate them for the full value, a letter from the United States Consul in Moscow stating, among other pertinent things, that "in law and practice Soviet heirs may receive inheritances from the United States and dispose of the proceeds as they see fit,"; a letter from the American Express Company that it can and in fact has frequently handled the transfer of funds to beneficiaries in the Soviet Union and that based on its experience such beneficiaries are allowed to receive such payments, and letters from the respondents to the effect that they would in fact personally receive the benefit of the moneys involved. While it is true that all of this evidence, including the treasury regulation, is hearsay, we find it sufficiently probative for the Surrogate to determine in the exercise of his discretion that the purport of the statute would not be offended. Order affirmed, with costs. Herlihy, J.P., Taylor, Aulisi and Hamm, JJ., concur. [ 40 Misc.2d 437.]