Request By:
Arthur B. Rouse, Jr., Esq.
Rouse and Collins
Suite Six F
Citizens Bank Square
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether an alien, a citizen of another country but presently a resident of Kentucky, may legally act as a fiduciary in Kentucky. Your factual situation involves a husband who is a native born citizen of West Germany but a naturalized citizen of the United States. His wife is a native born citizen of West Germany and resides with him in Kentucky but she has never made any declaration of intent to become a citizen of the United States.
KRS 395.001 defines "fiduciary" as follows:
"The term 'fiduciary' as used in KRS 25.175, 25.195, 25.205, 395.005, 395.105, 395.145, 395.200, 395.255 and 395.990 means any person, association, or corporation (other than assignee or trustee for an insolvent debtor or a guardian under the uniform veterans' guardianship act) appointed by, or under the control of, or accountable to, the county court, including executors, administrators, administrators with the will annexed, testamentary trustees, curators, guardians and committees."
KRS 395.005, concerning who may be appointed as a fiduciary, provides as follows:
"The following persons may be appointed as fiduciary:
(1) Any resident of the state of Kentucky, including married women, over eighteen years of age, and any national bank located in Kentucky having fiduciary powers and any state bank or trust company incorporated under the laws of the state of Kentucky and authorized by law to act as fiduciary.
(2) Any nonresident of legal age who is:
(a) The spouse of the decedent;
(b) Related to the decedent by consanguinity;
(c) The spouse of the person related to the decedent by consanguinity;
(d) The father, mother, brother, or sister of the spouse of decedent; or
(e) The legally adopted child or adoptive parent of decedent. "
Subsection (1) of the above quoted statute merely refers to "resident of the state of Kentucky" and contains no reference to citizenship. We are, however, unable to find any Kentucky case deciding the question of whether a person, to qualify as a fiduciary, must be a citizen of the United States. Furthermore, there are just a few cases from other jurisdictions which have dealt with this matter and the legal encyclopedias only cover the subject briefly.
We first direct your attention to 31 Am.Jur. 2d, Executors and Administrators, § 75, where the following appears concerning aliens:
"At common law a nonresident alien could be appointed executor or administrator, even though the country of which he is a citizen was at the time at war with the country in which he was appointed, but a statute denying to an alien the right to act as administrator is a valid exercise of the legislative power."
In 33 C.J.S. Executors and Administrators, § 46 (f) (2), pertaining to alienage, it is stated:
"Where the court is not bound by contrary statutory restrictions it may appoint an alien, or nonresident alien, although the matter may be confided to a judicial discretion which may be exercised against the appointment. Under restrictive statutes aliens may be ineligible for appointment, particularly where nonresident, although it has been held under statutes of this character that the single fact of alienage does not disqualify the applicant."
In
Brown v. Kehoe, Michigan, 105 N.W. 28 (1905), the Court said that under the common law an alien is authorized to be named and appointed as an executor. The Court, in
Grand Trunk Western R.Co. v. Kaplansky, 270 Michigan 135, 258 N.W. 423 (1935), approved the appointment of aliens, who were residents of Michigan but citizens of the U.S.S.R. and Canada, respectively, as administrators. A Michigan statute authorized the Court to appoint as administrators the nominee of the widow, husband or next of kin if such person was suitable or competent to discharge the trust as administrator of the estate.
The Court, in the case of In re Gaffney's Estate, 141 Misc. Rep. 453, 252 N.Y.S. 649 (1931), said that, "Alienage alone does not disqualify an administrator, but there must be adequate proof of his being an inhabitant. " As applied to aliens who must be inhabitants of the state to the entitled to be administrators, the Court stated that "inhabitant" means fixed or permanent dwelling in the state as distinguished from a transient or an occasional visitor.
Therefore, in our opinion, in the absence of any court interpretation of the matter and in view of the absence from the statute of any requirement of citizenship, alienage alone does not prevent a permanent resident of Kentucky from legally acting as a fiduciary pursuant to KRS 395.005(1) if the person involved satisfies the other requirements set forth in the statute.