In re the Estate of Domenic

Kane, J.

Appeal from an order of the Surrogate’s Court of Greene County (Battisti, Jr., S.), entered January 31, 1985, which granted petitioner’s application directing respondent to pay petitioner, as attorney-in-fact for certain individuals alleged to be the heirs of decedent, the sum of $34,474.23.

On October 30, 1979, Louis Domenic, decedent, a resident of Greene County, died intestate. Letters of administration were issued to the Greene County Treasurer as public administrator. Because he was unable to locate any heirs, a decree was obtained depositing the proceeds of the estate with respondent. Thereafter, petitioner, as attorney-in-fact for 13 individuals alleged to be decedent’s heirs, commenced the instant proceeding pursuant to SCPA 2222, seeking an order directing the payment to him of the funds on deposit with respondent. In support of his claim, petitioner submitted the affidavit of Luigi Scotolati, who conducted genealogical research in Italy. After reviewing this affidavit and noting that "the proof herein could have been stronger”, Surrogate’s Court nevertheless granted the petition. This appeal by respondent ensued.

A review of the record reveals that the evidence was insufficient, as a matter of law, to demonstrate petitioner’s entitlement to the money claimed. The only proof submitted by petitioner was the affidavit of Scotolati. Scotolati stated that he had been unable to locate the birth record of anyone having the name "Louis Domenic” and opined that Louis Domenic "could, in fact, be Lusi Domenico”. Scotolati also asserted that he was "informed” that one Antonio Lusi, an older brother of a Domenico Lusi, had emigrated to the United States in 1914. There was a passport issued to Antonio, but no record of a passport being issued to Domenico. However, Scotolati surmised that, "it is possible that both brothers emigrated to New York at the same time” (emphasis supplied). Scotolati speculated that when Domenico Lusi arrived in New York, his name could have appeared to have been "Lusi Domenico”, and could have been anglicized by customs officials to "Louis Domenic”. This affidavit, based on speculation by Scotolati, is insufficient to establish heirship. Accordingly, the order should be reversed and the petition dismissed.

Order reversed, on the law, without costs, and petition dismissed. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.