Fay's Estate, In re
| Citation | 332 N.Y.S.2d 322,70 Misc.2d 51 |
| Parties | In re ESTATE of John P. FAY. Surrogate's Court, New York County |
| Decision Date | 11 May 1972 |
| Court | New York Surrogate Court |
Mulligan & Jacobson, New York City, for respondent Christa Ruthe Fay; William G. Mulligan, Hadassah R. Shapiro, Sandra W. Jacobson, New York City, of counsel.
Joseph T. Arenson, New York City, Elias Karban, New York City, and Philip Beckerman for Public Administrator of the County of New York, petitioner.
James G. McGoldrick, New York City, for respondent Violet Josephine Buck.
White & Case, New York City, for respondents Kate Wetherall Spencer, et al.
S. SAMUEL DIFALCO, Surrogate.
In a proceeding for leave to sell certain personal property of the decedent, this is a motion by the respondent Christa Ruthe Fay for a trial by jury as to the issue of her status and the status of Violet Josephine Buck as distributees of the estate; for separate trials of these issues and for the adjournment of the trial concerning her status.
It appears that the request for adjournment of the trial has been withdrawn since the parties have entered into a stipulation setting the trial down for June 27, 1972. Furthermore, all parties agree and this court is in accord with the request for separate trials of the status of movant and respondent Buck. Accordingly, that branch of the motion which requests separate trials is granted and the trial of the status of Christa Ruthe Fay shall take place on the agreed date and shall be prior to any trial of the status of the other respondent.
That branch of the motion as requests a jury trial of the issues of status is denied. The court is of the opinion that movant has no constitutional right to a jury trial on the issues of whether she was the wife of the decedent or whether the other respondent is a distributee of the estate . In Matter of Erlanger, Supra, the late Surrogate Foley carefully considered jurisdiction of the Surrogate's Court and the right to jury trial therein. He pointed out that trial by jury in the Surrogate's Court was introduced in the Code of Civil Procedure by the revisers in 1914. (See Report of Commission to Revise Practice and Procedure in Surrogate's Court (1914) §§ 2538 and 2539). Long prior to 1914 the Surrogates had jurisdiction to determine the necessary parties in a special proceeding, the status of a widow, her right to participate in the distribution of the estate, and her right to serve as a fiduciary (Jessup's Surrogate's Practice, 4th Ed., (1912), § 96, page 94). The right of the court to determine interests was said to be limited to personal property (id.).
In Matter of Hamilton, 76 Hun 200, 27 N.Y.S. 813, the question was whether appellant was the widow of decedent and entitled to take part in a probate proceeding. The court said:
'It is a very familiar rule in the conduct of the trial of cases, particularly those in the nature of equity proceedings, where there is a preliminary question as to the right of one of the parties either to bring the action or to intervene as a defendant, to try such question, and to determine the status of the parties, before attempting to pass upon the final rights in respect to which the action is brought. Such is the foundation of almost all interlocutory judgments in equity actions, except those entered upon demurrers.
In actions for a partnership accounting, it is familiar practice, where the partnership is denied as to one of the parties, to first try the question of partnership, before allowing such party claiming to be a partner to vex the court and the other parties to the litigation with his presence in a controversy in which he may have no interest'. (page 204, 27 N.Y.S. page 815)
The same rule was applied in a probate proceeding.
In Matter of McGarren (112 App.Div. 503, 98 N.Y.S. 415 (1906)) a lady whose marriage had been annulled by judgment sought revocation of letters of administration upon the estate of her former husband. A question arose as to the validity of the annulment. The Surrogate had expressed some doubt as to his authority to pass upon the validity of a judgment of the Supreme Court. The Appellate Division ruled that the Surrogate did have the power to determine the validity of the judgment and the status of the petitioner, pointing out that the Surrogate's authority to rule upon such questions was upheld in Kerr v. Keer (41 N.Y. 272) and in Matter of Kimball (155 N.Y. 62, 49 N.E. 331).
The late Surrogate Delehanty, in a scholarly opinion, reviewed the right to jury trial in the Surrogate's Court in a decision which was unanimously affirmed in the Appellate Division and in the Court of Appeals (Matter of Leary, 175 Misc. 254, 23 N.Y.S.2d 13, affd. 260 App.Div. 1000, 24 N.Y.S.2d 1000, affd. 285 N.Y. 693, 34 N.E.2d 384). Citing the text of the New York State...
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