In re the Estate of Taomina

2 A.D.2d 711, 153 N.Y.S.2d 250, 1956 N.Y. App. Div. LEXIS 4871

Opinion

On December 18, 1954 decedent, a resident and citizen of Italy, was killed in an airplane crash in Queens County. He left him surviving a widow and three minor sons, all residents of Italy. On February 10, 1955 letters of administration were issued to the public administrator of Queens County, the only asset in Queens County being the cause of action for wrongful death. On March 23, 1955 the widow, individually and as guardian of the three infant children, authorized and designated appellant as attorney in fact to apply for and receive ancillary letters upon decedent’s estate. On August 5, 1955 a citation was issued requiring the public administrator to show cause why ancillary letters should not be granted to appellant, and the letters theretofore granted to the public administrator should not be revoked or limited. The appeal is from an order of the Surrogate’s Court, Queens County, denying the application on the ground that original letters had been issued to the public administrator (Surrogate’s Ct. Act, § 160). Order reversed, without costs, and matter remitted to the Surrogate’s Court to revoke the letters heretofore issued to the public administrator and to issue ancillary letters to appellant. If original letters had not been issued to the public administrator, the mandatory provisions of section 160 of the Surrogate’s Court Act would require ancillary letters to be issued to appellant. Where original letters have already been issued, the grant of ancillary letters is discretionary. (Surrogate’s Ct. Act, §§ 136-w, 160.) Where the only persons interested in decedent’s estate and the only persons who will receive the proceeds of the cause of action for wrongful death have designated an attorney in fact to receive letters, their designee should be appointed (Surrogate’s Ct. Act, § 161), and the public administrator superseded. Wenzel, Acting P. J., Beldoek, Ughetta, Hallinan and Kleinfeld, JJ., concur.