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In re Estate of Menschefrend

Supreme Court of New York, Appellate Division

March 16, 1954

In the Matter of the Accounting of BEN H. BROWN, as Ancillary Administrator of the Estate of IKE MENSCHEFREND, Deceased, Respondent. NATHANIEL L. GOLDSTEIN, as Attorney-General of the State of New York, Appellant.

Page 464

APPEAL from a decree of the New York County Surrogate's Court (COLLINS, S.), entered July 13, 1953, directing respondent, ancillary administrator who is the Public Administrator of Los Angeles County, California, to pay to himself as decedent's domiciliary administrator in California the net amount of decedent's New York estate.

COUNSEL

Daniel M. Cohen of counsel (Flavius N. Costerella with him on the brief; Wendell P. Brown and Nathaniel L. Goldstein, Attorney-General), for appellant.

Theodore Garris for respondent.

BASTOW, J.

On July 9, 1949, Ike Menschefrend died intestate in California, where he had continuously resided for fourteen years. Up to the present time, despite diligent search, no trace has been found of any heirs at law or next of kin.

In September, 1949, the Public Administrator of Los Angeles County, California, was appointed domiciliary administrator in California. There were located in that State $4,500 in cash, some United States Savings Bonds and a savings account. It was also discovered that there were three bank accounts in New York City with deposits totaling $9,565.24. They had been inactive for almost fifteen years. In September, 1950, the domiciliary administrator was appointed ancillary administrator by the Surrogate of New York County. Shortly thereafter the proceeds of the bank accounts were paid by the banks to said ancillary administrator.

No creditors having appeared after due advertisement, the ancillary administrator petitioned for judicial settlement of his account and asked for payment of the ancillary estate, less

Page 465

counsel fees, to himself as domiciliary administrator. The estate had been declared exempt from New York estate tax.

The Attorney-General of the State of New York, having been cited, objected to payment to the domiciliary administrator. He claimed that the local estate should be paid to the Comptroller of the State of New York as abandoned property. The Surrogate overruled the Attorney-General's claim and directed the payment of the money to the domiciliary administrator. It was held that the bank accounts were not abandoned property within our statutes, having been paid to the administrator who was the person entitled to receive them, and also that there could be no inference that the property would escheat because of the lack of present knowledge as to distributees. The Attorney-General has appealed to this court.

The account filed by the ancillary administrator says that there are no debts, but this may refer to non-existent New York creditors. It would appear from the present record, and for the purposes of this appeal we assume it to be the fact, that the portion of the estate in California is sufficient to pay all claims, funeral and administration expenses, and that the money in New York is not needed in California for the purpose of meeting these obligations. We find no claim that any tax problem is presented.

Referring briefly to the common law of escheat, we find that in England it was an incident of tenure and thus provided for a reversion of escheated property to the lord of the manor. In this country, where there is no recognition of feudal tenure, it is generally held to be an incident of sovereignty ( Matter of People [Melrose Ave.],234 N.Y. 48). Escheat is not a matter of succession of estates. It is said to be an obstruction in the course of descent (30 C. J. S., Escheat, ยง 1). While personal property does not escheat in the original sense of the word, the doctrine of escheat has been applied to personalty in New York under the common law. Thus, in Johnston v. Spicer (107 N.Y. 185), in discussing the history of the common law and earlier statutes with respect to escheat, the court said (p. 201): 'With reference to the personal estate of persons dying intestate without next of kin, it appears to have been the uniform practice of the State since its organization to ...


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