DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
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In the Matter of
THOMAS F. DOHERTY, Notary Public
Appellant,
DECISION AND ORDER
07 DOS APP 03
-against-
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Respondent
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The Appellant, Mr. Thomas F. Doherty, appeals to the Secretary of State from a Decision of the Office of Administrative Hearings (OAH) which revoked Mr. Doherty’s Notary Public commission upon a determination of misconduct.
The Appellant submitted a Memorandum appealing the Decision, whereupon the Respondent Division of Licensing Services (DLS) submitted a Memorandum in Opposition and Cross Appeal. Subsequently the Appellant submitted a Response to the Cross Appeal.
ISSUES PRESENTED
This Appeal considers: (1) whether Appellant was given due and proper notice of the hearing; (2) whether a notary may lawfully take the oath of a testator on a will; (3) whether a notary may take the testator’s oath on a will which names the notary himself as executor; (4) whether a notary, having taken the testator’s oath, may thereafter seek to be named administrator of the decedent’s estate; and (5) whether a notary must indicate the venue of his act when taking an oath.
FINDINGS OF FACT
The Findings of Fact denominated as such and numbered 1) through 5) of the OAH Decision are adopted for purposes of this Appeal. The subsequent paragraphs, numbered I through VI of the OAH Decision and also denominated “Findings of Fact”, are deemed to have been intended to be denominated instead as “Opinion” and/or “Conclusions of Law”, and are not adopted.
OPINION
(1) The Office of Administrative Hearings sent Appellant a Notice of Hearing by certified mail, the receipt of which was signed at Appellant’s address on August 30, 2002. The Notice clearly states the date, time and place of the hearing. Appellant was therefore given due and proper notice of the hearing.
(2) The Notary Public License Law (Executive Law §§130-138) does not expressly prohibit licensed notaries from taking the oath of a testator to a will. In a decision cited in the OAH Decision, In re McDonough’s Estate, 201 AD 203, 193 NYS 734 (3rd Dept., 1922), the court held that where a notary signs a will for the sole purpose of taking the oath of other signatories to the document, his signature cannot ipso facto be held to be that of an attesting witness to the will. The court did not, however, appear to determine that the taking of the oath itself was per se improper.
(3), (4) It has been held that a subscribing witness to a will may also be its executor. Children’s Aid Society v. Loveridge, 70 NY 387 (1877). Nonetheless notaries public are public officers. People v. Rathbone, 145 NY 434, 40 NE 395 (1895); Patterson v. Dept. State, 35 AD 2d 616, 312 NYS 2d 300 (3rd Dept., 1970). They are thus held to strict statutory and common-law standards regarding maintenance of the public trust. One who stands to benefit from the terms of a document cannot take the acknowledgment of a signatory thereto. Armstrong v. Combs, 15 AD 246, 44 NYS 171 (3rd Dept., 1897); Peo. ex rel. Erie RR Co. v. Bd. of RR Commissioners, 105 AD 273, 93 NYS 584 (3rd Dept., 1905); Sumkin v. Hammonds, 177 Misc. 2d 1006, 677 NYS 2d 734 (D.C., Nassau Co., 1998). Executors and administrators are allowed commissions for the exercise of their duties as fiduciaries to an estate. Surr. Ct. Proc. Act. §2307.
Appellant, acting as a licensed Notary Public, took the oath of Mr. John Figall on a document titled “Last Will and Testament of John Figall”. Appellant was named in the same document as executor. State’s Ex. 3. Using the unprobated will as evidence of Mr. Figall’s intentions, Appellant was later appointed administrator of Mr. Figall’s estate in both Connecticut and New York. State’s Exs. 6 & 7. He therefore stood to gain monetarily from the disposition of Mr. Figall’s estate, whether according to probate or intestacy. This was a violation of his responsibilities as a Notary Public.
In its instructional booklet titled Notary Public License Law (Oct. 2001 ed.), p. 2, the DLS cautions Notaries Public “not to execute an acknowledgment of the execution of a will. Such acknowledgment cannot be deemed equivalent to an attestation clause accompanying a will.” In this same publication, at page 6, there appears the cautionary statement: “if the notary is a party to or directly and pecuniarily interested in the transaction, the person is not capable of acting in that case.” (Emphasis supplied.)
While it may not have been improper for Appellant to have merely taken Mr. Figall’s oath on the will, he committed misconduct by taking such oath where he had already been named executor in the document. He committed further misconduct by applying for and receiving appointment as administrator of Mr. Figall’s estate, using a document in which he had acted as a Notary.
(5) When exercising his powers, a licensed Notary Public must indicate the venue of his act. Executive Law §137. No venue is given in the oath which was taken of Mr. Figall by Appellant. State’s Ex. 3. Further, Appellant has now admitted to such omission. Memorandum of Appeal, d. Jan. 16, 2003. Appellant therefore committed misconduct by failing to indicate the venue of his act.
DETERMINATION
For the reasons stated herein, the Decision of the Administrative Law Judge revoking Appellant’s Commission as a Notary Public is hereby affirmed.
It is hereby ORDERED that Appellant shall forthwith send his Notary Public identification card to Usha Barat, Customer Service Unit, Department of State, Division of Licensing Services, 84 Holland Avenue, Albany NY 12208. It is further ORDERED that, from and after receipt of this Decision, Appellant shall cease to hold himself out as, or act in any way as, a licensed Notary Public of the State of New York.
So ordered on:
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Frank P. Milano
First Deputy Secretary of State