RALPH SETTON v. << (2026)

Before the court is a petition filed by Wesley L. Fritz (petitioner), one of the co-executors of the estate of Donald A. Marsden (decedent), seeking an order pursuant to SCPA 2222 authorizing and directing the co-executors to deposit unclaimed estate funds in the amount of $12,500.00, with the New York State Comptroller and discharging them from any further liability with respect to such funds upon proof of deposit. No opposition was filed.

The decedent died a resident of Nassau County on August 20, 2020. His last will and testament dated September 22, 2018 (the Will), was admitted to probate by decree of this court dated May 12, 2021, and letters testamentary issued to the petitioner and Gayle Evans Brookfield, as co-executors, on that same date.

The petitioner states that the estate has been substantially administered, and the co-executors are preparing to complete the final distributions and close the estate. Pursuant to the Will, Article Ninth (a) provides a general disposition of cash in the amount of $25,000.00, to be shared equally between Ralph Setton (Ralph) and Maureen Setton (Maureen). Maureen post-deceased the decedent and her share has been distributed to the co-executors of her estate, Laura Rhodes and Alicia Mackin. Ralph also post-deceased the decedent. Despite efforts to locate a fiduciary for Ralph's estate, no estate representative has been located. Ralph's two children, Jerome Setton and Nathalie Setton, have refused to accept Ralph's bequest and have not cooperated in the co-executors' attempts to pay Ralph's bequest. It is Ralph's share that is at issue in the instant proceeding.

The petitioner commenced this proceeding under SCPA 2222. SCPA 2222 provides that "[w]here the person entitled to a legacy or distributive share is unknown the decree must direct the fiduciary to pay the amount thereof to the comptroller of the state for the benefit of the person or persons who may thereafter appear to be entitled thereto." Counsel for the petitioner relies on SCPA 2222 here arguing that, "when a legatee is unknown, cannot be found, or fails to collect their legacy, a fiduciary may petition for the deposit of the funds at issue with the Office of the New York State Comptroller, Unclaimed Funds Division, to be held for the benefit of the person or persons entitled thereto."

Although denominated as a proceeding under SCPA 2222, the petition is more properly a proceeding under SCPA 2223. The difference between the two statutes is that SCPA 2222 applies only to unknown owners and does not apply where owners are known. SCPA 2223 applies where the whereabouts of the person entitled to payment is unknown. In Matter of Fuller, 2022 NYLJ 1733 [Sur Ct, New York County], a case involving a living trust, the court sua sponte relied upon SCPA 202 to convert a petition brought by the trustees pursuant to SCPA 2222, to a proceeding under SCPA 2223. The court stated that "[a]lthough the papers filed refer to these beneficiaries as 'unknowns,' their status is actually that of known beneficiaries ... Payment for an unknown legacy or distributive share is made to the New York State Comptroller, pursuant to SCPA 2222, while payment for a known but missing beneficiary is made payable to the [Nassau County Treasurer], pursuant to SCPA 2223" (Matter of Fuller, 2022 NYLJ LEXIS 1733 [Sur Ct, New York County]; Matter of Walsh, 2016 NY Slip Op 32044 [U] [Sur Ct, Nassau County])."[T]he court, under its general equitable powers, may directly grant any relief it could grant incidental to another statutory proceeding" (SCPA 202; Matter of Garofalo, 141 AD2d 899, 901 [3d Dept 1988]; accord, Matter of Lewis, 9 Misc 3d 1113[A][Sur Ct, Nassau County 2005]; In re Estate of Gold, 2016 WL 6311344, at *3 [Sur Ct, New York County 2016]). Accordingly, the court will treat this application as one made pursuant to SCPA 2223 (SCPA 202) (Estate of Fuller, 2022 NYLJ LEXIS 1733[Sur Ct, New York County]; Matter of Walsh, 2016 NY Slip Op 32044 [U] [Sur Ct, Nassau County]).

The co-executors have not commenced a proceeding for the judicial settlement of their account. Instead, they have brought this miscellaneous proceeding under SCPA 2223. In Matter of Pappas, 2024 NYLJ LEXIS 2838 (Sur Ct., New York County), the court without notice to any parties, granted a petition pursuant to SCPA 2223 brought by the executor of the estate, and entered a decree directing the deposit with the NYC Commission of Finance for legacies to persons whose whereabouts could not be ascertained. The court notes that the order and decree, in Matter of Pappas, were not entered in an accounting proceeding but in a separate miscellaneous proceeding.

In the instant proceeding, all persons interested, including the New York State Attorney General have been served with citation, which directed them to show cause why the legacy should not be paid to a government entity for the benefit of Ralph Setton and/or his heirs.

It has been sufficiently demonstrated that Ralph Setton's heirs (the beneficiaries), are known but refuse to cooperate despite diligent efforts. Accordingly, the petition is GRANTED. The co-executors, Wesley L. Fritz, and Gayle Evans Brookfield, as fiduciaries of the Estate of Donald A. Marsden, are authorized to deposit the sum of $12,500.00, representing the distributive share due to the heirs of Ralph Setton, with the Nassau County Treasurer, in accordance with SCPA § 2223.

Upon submission of proof of such deposit, the fiduciaries are relieved of any further liability or responsibility for the said share.

Settle decree on notice, directing deposit of the legacy with the Nassau County Treasurer, as described in the petition, pursuant to SCPA 2223.

Dated: July 9, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court

David P. Sullivan, J.