Opinion 94-27

March 10, 1994

Please Note: While the outcome of this opinion remains unchanged, former section 100.5(d) has been superseded by 22 NYCRR 100.4(E)(1).  Full-time judges, in particular, should be careful to review the current rule. 

Digest:         A full-time judge who serves as judge of Surrogate’s Court is not precluded from serving as co-executor of a family member’s estate since under the set of facts presented, the judge is required to recuse himself/herself from hearing the case, and, if necessary, ask the Administrative Judge to reassign the matter to another judge.

Rules:          22 NYCRR 100.2, 100.3 ( c), 100.5 (d)

Opinion:

         A full-time judge, who serves as judge of the County Court, the Family Court, and Surrogate’s Court, advises that before ascending to the bench, while still a practicing attorney, he/she drafted his/her father’s will; that the father died; that the judge and his/her brother are sole distributees and only beneficiaries of the residuary estate, and are co-executors of the estate; and that the Will is to be probated in the Surrogate’s Court where the judge serves. The judge inquires if he/she may serve as co-executor of the father’s estate.

         The Rules of the Chief Administrator, 22 NYCRR 100.5 (d), provide as follows:

No judge, except a judge who is permitted to practice law, shall serve as the executor, administrator, trustee, guardian or other fiduciary, designated by an instrument executed after January 1, 1974, except for the estate, trust or person of a member of his or her family * * *.

(1) A judge shall not serve as fiduciary if it is likely that as a fiduciary he or she will be engaged in proceedings that would ordinarily come before him or her, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves * * *.

         Here, it is clear from the second part of the exception contained in section 100.5 (d) (1) that if a controversy arose and an adversarial proceeding were instituted, it would be brought in Surrogate’s Court, the Court on which the inquiring judge serves, and the judge, at first glance, apparently would have to resign as co-executor to avoid the appearance of impropriety (§ 100.2). The first part of the exception, however, requires a little deeper study. The judge must resign as fiduciary if the proceedings “would ordinarily come before him or her”. To be determined is whether this proceeding would ordinarily come before the judge. We must review the word “ordinarily” in the course of reality. The facts of this case establish that the judge prepared his/her father’s will prior to ascending to the bench; that the judge is a named beneficiary, and that, with his/her brother, they are co-executors of the estate.

         Pursuant to 22 NYCRR § 100.3 ( c), a judge must disqualify himself/herself in a proceeding in which his/her impartiality might reasonably be questioned, including situations in which the judge has knowledge of disputed evidentiary facts concerning the proceeding (§ 100.3 [ c] [1] [i];where the judge served as lawyer in the matter in controversy (§ 100.3 [c] [1] [ii]; where the judge knows that he/she has a financial interest in the subject matter in controversy; and where a person within the sixth degree of relationship to the judge is a party to the proceeding (§ 100.3 [c] [1] [iv] [a]. Since, under the factual circumstances presented, the above proceeding would not “ordinarily” come before the inquiring judge, it is the opinion of the Committee that the judge does not have to resign as co-executor of his/her father’s estate.

         In sum, under the facts presented, the judge may serve as co-executor of his father’s estate. But the judge cannot take any judicial action in matters in which he is a party as an executor, which essentially means any matter affecting the estate. Thus, the judge must recuse himself or herself and, if necessary, request that the Administrative Judge assign another judge to hear the matter.