Will of Murphy, Matter of

• Decision Date: 22 July 1987
• Citation: 518 N.Y.S.2d 897,136 Misc.2d 618
• Parties: Matter of Probate Proceeding, WILL OF Florence MURPHY, Deceased. Surrogate's Court, Richmond County
• Court: New York Surrogate Court

Page 897

518 N.Y.S.2d 897

136 Misc.2d 618

Matter of Probate Proceeding, WILL OF Florence MURPHY, Deceased.

Surrogate's Court, Richmond County.

July 22, 1987.

Donald L. Magnetti, New York City, for executor, Rose McBrien.

Pauline Levin Gold, Staten Island, for executors, Charles J. Murphy, Frank Murphy, Jr., and John M. Murphy.

CHARLES J. D'ARRIGO, Surrogate.

In this probate proceeding, the Decedent died on June 4, 1986, a resident of Richmond County. Offered for probate by Decedent's daughter, ROSE McBRIEN, a nominated Co-Executor therein, was an instrument, dated March 25, 1986, purporting to be the Last Will and Testament of the Decedent. The prayer for relief in the probate petition sought the issuance of Letters Testamentary to the Petitioner and the other nominated Co-Executors, CHARLES J. MURPHY, JOHN M. MURPHY, and FRANK MURPHY, JR. Upon the filing of the papers at the Clerk's office, the issue of JOHN M. MURPHY'S eligibility to receive Letters under SCPA 707(1)(d) and (e) arose.

At a conference, it was requested by all attorneys and consented to by the Court that the Will be admitted to probate and that Letters Testamentary be issued to ROSE McBRIEN, CHARLES J. MURPHY, and FRANK MURPHY, JR. It was further agreed that the issuance of Letters Testamentary to JOHN M. MURPHY be deferred pending resolution of the issue of his eligibility in accordance with SCPA 707(1)(d) and (e). Accordingly, the Will was admitted to probate and Letters Testamentary issued to ROSE McBRIEN, CHARLES J. MURPHY, and FRANK MURPHY, JR. on October 10, 1986.

The pertinent statute herein is SCPA 707 which provides:

"Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows:

1. Persons ineligible ...

(d) a felon

(e) one who is incompetent to execute the duties of his office by reason of drunkenness, dishonesty, improvidence or want of understanding."

Memoranda of law were submitted on behalf of JOHN M. MURPHY in which he contends that he is not a person ineligible to serve as a fiduciary pursuant to SCPA 707(1)(d) and (e).

Relative to the issue of ineligibility pursuant to SCPA 707(1)(e), the weight of authority is to the effect that the showing against a nominated executor must be relatively strong in order to disqualify him on the ground of dishonesty. Indeed, the choice of the Decedent should not be set aside lightly. In re Mecko's Will, 70 N.Y.S.2d 41. The Court is likewise mindful of the standard set for dishonest conduct which would render one incompetent to execute the duties of a fiduciary. This standard is found in Matter of Latham's Will, 145 App.Div. 849, 130 N.Y.S.2d 535, and its progeny. In Latham the Court stated (at 854, 130 N.Y.S.2d 535) "the dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor." In applying the Latham standard, the Court finds that JOHN M. MURPHY is not ineligible to receive Letters Testamentary pursuant to SCPA 707(1)(e).

The Court now turns its attention to the issue of whether JOHN M. MURPHY is "a felon", and therefore ineligible to serve as a fiduciary pursuant to SCPA 707(1)(d).

In June, 1980 JOHN M. MURPHY was named in a five count federal indictment, implicating him in the ABSCAM investigation. United States v. John M. Murphy No. 80-CR-00291 (E.D.N.Y.). Count One charged a conspiracy to defraud the United States in violation of 18 U.S.C. § 371; Count Two charged receipt of a bribe in violation of 18 U.S.C. § 201(c); Count Three charged a conflict of interest in violation of 18 U.S.C. § 203(a); Count Four charged a violation of the Travel Act under 18 U.S.C. § 1952; and Count Five charged receipt of an unlawful gratuity in violation of 18 U.S.C. § 201(g).

After a jury trial, JOHN M. MURPHY was found guilty of Counts One, Three, and Five and was acquitted of Count Two and Count Four. On appeal, the United States Court of Appeals for the Second Circuit reversed and remanded for a new trial Murphy's conflict of interest conviction, while affirming his convictions on the conspiracy and unlawful gratuity charges. United States v. Myers, 692 F.2d 823 (Myers II ). Murphy was sentenced to three years on Count One and two years on Count Five and fined $10,000.00.

The fact of the convictions is not disputed. It is, likewise, undisputed that the crimes committed by Murphy constitute felonies pursuant to the United States Code inasmuch as 18 U.S.C. § 1 provides that a felony is a crime punishable by a term of imprisonment exceeding one year. However, this alone would not render him ineligible to serve as a fiduciary in New York. For Murphy's federal felony conviction to have the impact of rendering him a "felon" within the meaning of SCPA 707(1)(d), the acts committed would have to constitute felonies under the Penal Law of the State of New York. (Matter of Caperonis, 95 Misc.2d 690, 408 N.Y.S.2d 231; Matter of Kaufman, 77 Misc.2d 424, 353 N.Y.S.2d 355; Matter of Thompson, 75 Misc.2d 508, 347 N.Y.S.2d 877; Matter of Johnson, 202 Misc. 751, 112 N.Y.S.2d 866; Matter of Wolf, Surr.Ct., Bronx County, N.Y.L.J., February 17, 1982, at 13, col. 1; 2 Warren's Heaton on Surrogate's Courts, sec. 128(4); 10A Cox-Arenson-Medina, N.Y.Civ.Prac., sec. 707.01).

Murphy argues in his memoranda that he is not a "felon" within the meaning of SCPA 707 and, therefore, eligible to serve as a fiduciary. Furthermore, Murphy contends that assuming arguendo his conviction is a felony under New York State Law, the issuance to him of a Certificate of Relief from Civil Disabilities pursuant to Correction Law 700 et seq. would relieve him of any bar to serving as co-executor in the Estate of FLORENCE MURPHY, deceased.

Murphy's conviction under Count Five was a violation of Section 201(g) of Title 18 of the United States Code which provides:

"Whoever being a public official, former public official, or person selected to be a public official, otherwise than as...