| Matter of Whitney |
| 2008 NY Slip Op 09683 [57 AD3d 1142] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mIn the Matter of the Estate of Laurence Whitney, Deceased. Wen MeiLu-Whitney, Appellant; Sarah Whitney, Respondent. |
—[*1] Lavelle & Finn, LLP, Latham (Nicholas E. Tishler, Niskayuna, of counsel), forrespondent.
Kane, J. Appeals (1) from an order of the Surrogate's Court of Saratoga County (Seibert, Jr., S.),entered August 1, 2007, which required petitioner to post a bond in the amount of $800,000, and (2)from an order of said court, entered January 14, 2008, which denied petitioner's motion forreconsideration.
Decedent, a domiciliary of California, executed a will in October 2005, married petitioner a fewweeks later, and died in February 2006. After the named executor declined to serve, the SuperiorCourt of California admitted decedent's will to probate, and appointed petitioner as administrator. TheCalifornia court required that petitioner post a $200,000 bond.
Petitioner commenced this proceeding seeking ancillary letters of administration c.t.a. The petitionlisted estate assets of over $750,000 in personal property and over $2.4 million in real property locatedin Saratoga County. Respondent, who is decedent's adult child, did not object to petitioner'sappointment but requested that petitioner be required to post a bond. Surrogate's Court ordered thatancillary letters be issued to petitioner only after she posted an $800,000 bond. Petitioner appeals fromthat order and from the court's denial of her motion to renew and reargue. We affirm.
This Court will only disturb the amount of a bond when Surrogate's Court abused its [*2]discretion in fixing the amount (see Matter of Jackson, 18 AD2d751, 751 [1962]; see also SCPA 1608 [2]). When issuing ancillary letters, "the bond may bein such sum as to the court seems just, unless the will dispenses with the filing of a bond by the fiduciarynamed therein, in which case the court may dispense with the filing of a bond by the fiduciary so named"(SCPA 1608 [2]). Contrary to petitioner's argument, this provision authorizes the court to issue letterswithout requiring a bond only where the will dispenses with that requirement for a fiduciary specificallynamed in the will. Decedent's will contained such a provision pertaining to the named executor.But when that named fiduciary declined to serve and the court appointed petitioner—a fiduciarynot named in the will—as administrator, the statute required imposition of a bond in an amountfixed by the court in its discretion.
The doctrine of res judicata and the US Constitution's Full Faith and Credit Clause do not precludeSurrogate's Court from requiring petitioner to post a bond. Although the California court imposed abond requirement, the subject matter in the two courts is not precisely the same. To garner res judicataeffect, a prior judgment must deal with the same subject matter as in the current case (see Matter of Josey v Goord, 9 NY3d386, 389-390 [2007]; Matter ofHunter, 4 NY3d 260, 269 [2005]). Similarly, the Full Faith and Credit Clause is notimplicated where the issue decided by a court in a sister state is different from the issue being decidedby a New York court. Letters of administration issued in California have no extraterritorial force and donot affect decedent's considerable property in New York (see Maas v German Sav. Bank, 73App Div 524, 527 [1902], affd 176 NY 377 [1903]). While the California probate proceedingis primary and New York's proceeding is merely an ancillary and "assistive vehicle" (Matter ofObregon, 91 NY2d 591, 599 [1998]), the requirement of a bond in ancillary proceedings, even ifa bond has been secured in the jurisdiction of the primary estate proceeding, serves to protect theinterests of creditors in this state (see Matter of Prout, 128 NY 70, 74 [1891]; see alsoWedemann v United States Trust Co., 258 NY 315, 319 [1932]). Because the California courtwas not aware of the extent of decedent's New York property at the time it imposed its bondrequirement and the bonds serve to protect different interests in the estate property, neither res judicatanor the Full Faith and Credit Clause are implicated here.
Considering the value of estate property located in New York, we cannot say that Surrogate'sCourt abused its discretion by requiring an $800,000 bond as a condition to issuing ancillary letters topetitioner (see SCPA 1608 [2]; Matter of Jackson, 18 AD2d at 751).
Finally, Surrogate's Court properly denied petitioner's motion. To the extent that the motion wasone for reargument, denial was not appealable, and the new information was insufficient to grantrenewal (see Matter of Linney v City ofPlattsburgh, 49 AD3d 1020, 1022 [2008]).
Cardona, P.J., Mercure, Lahtinen and Kavanagh, JJ., concur. Ordered that the orders areaffirmed, with costs.