Brother 1 and 80 year old Brother 2 share an apartment in New York.
Brother 1 buys a pedigreed dog and, shortly afterward, passes away.
At the time of Brother 1’s funeral, Cousin discovers Brother 1’s Dog in an allegedly grossly neglected state.
Cousin and his wife take Dog and nurse it back to health – at significant expense to them.
Brother 2 becomes personal representative of Brother 1’s estate. Brother 2 is also Brother 1’s sole heir.
Brother 2 wants the Dog back and applies to the Probate (called Surrogates in New York) Court accordingly. Months later, apparently.
Cousin argues by way of defense that Brother 2 relinquished Dog and should be deemed to have gifted Dog to Cousin and his wife. Cousin further contends that Brother 2 is unable to care for Dog and that therefore it is in Dog’s best interest that Dog remain in Cousin’s and his wife’s care.
This would be a leap, however, beyond New York’s (and all or nearly every state’s) current law, be it child custody and family law, or probate and intestacy law. By the strict letter of the law, pets are still considered mere property, no more and no less.
The court will not consider the pet’s best interest, as if it were a child. (There is some wiggle room in a legitimate case of full-blown animal abuse, but the court did not find that that here.)
On the contrary, the court did receive an evaluation by an independent animal rescue representative, which assured the court that Brother 2 could and would care for Dog properly.
Accordingly, the court ordered that Cousin restore the Dog to Brother 2’s custody, uh, possession.
Read more in this New York Law Journal article: LI Man Wins Custody of Deceased Brother’s Dog .