Estate of Brown
| Decision Date | 14 January 1981 |
| Parties | ESTATE OF Katherine BROWN. Surrogate's Court, New York County |
| Court | New York Surrogate Court |
Charles E. Duross, New York City, pro se.
Weisman & Weisman, New York City, for petitioner (Samuel Weisman, New York City, of counsel).
MILLARD L. MIDONICK, Surrogate.
Petitioner, a New York attorney who is not related to decedent, has petitioned for original probate of decedent's last will and testament and for his appointment as executor and trustee pursuant to SCPA 1605. Decedent died a domiciliary of Florida but she has been buried in New York and has approximately 50 per cent of her assets in New York. The will was drafted and executed in New York in 1974 while she was a domiciliary, and decedent moved to Florida in 1976. The reason presented for this application for original probate is that the petitioner is prohibited from being appointed the executor in Florida. It must be noted on the other hand that Florida courts do not become involved in trusts and so petitioner could act as trustee therein if probate were granted by Florida (Florida Statutes, section 737.105).
Section 733.304 of the Florida Statutes prohibits a nonresident from qualifying as a personal representative (executor or administrator) unless that person is:
"(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent; or
(4) The spouse of a person otherwise qualified under this section."
Petitioner does not come within any of these exceptions and so can not qualify in Florida under its statutes.
However, the constitutionality of that statute has been challenged in Florida. One challenge was made in the Federal courts and a second challenge was made in the State courts. In the former the United States District Court, Middle District, Tampa Division in 1979 found the statute to be unconstitutional (Fain v. Hall, 463 F.Supp. 661). On October 30, 1980 the Supreme Court of Florida rendered a contrary decision which upheld the statute against a challenge that it was unconstitutional (Matter of Greenberg, 390 So.2d 40, (Sup.Ct.Fla.1980, Alderman, J.)). Even if the United States Supreme Court does not review either of these two cases, the result appears to be that a non-resident such as the petitioner herein cannot qualify as an executor or trustee in Florida. Other jurisdictions restrict appointment of fiduciaries as well and so that issue may be resolved before the Supreme Court elsewhere (Matter of Emery, 59 Ohio App.2d 7, 391 N.E.2d 746; Matter of Quirin, 116...
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...is authority for granting original probate in New York (see, Matter of Goldstein, 34 A.D.2d 764, 310 N.Y.S.2d 602; Matter of Brown, 107 Misc.2d 970, 436 N.Y.S.2d 132; see also, SCPA 1605; Matter of Heller-Baghero, 26 N.Y.2d 337, 310 N.Y.S.2d 313, 258 N.E.2d 717). Here, although decedent had......
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