Matter of Texin
2012 NY Slip Op 52378(U) [38 Misc 3d 1206(A)]
Decided on December 19, 2012
Sur Ct, Nassau County
McCarty, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2012
Sur Ct, Nassau County

In the Matter of Administration Proceeding, Estate of Stewart Texin, a/k/a STUART TEXIN, Deceased.


Mitchell E. Wilensky, Esq. (attorney for Jessica Texin, respondent)

110 Wall Street, 11th Floor

New York, NY 10005-3817

Lori Nevias, Esq. (attorney Melissa Texin, proposed administratrix)

24 Princeton Street

Rockville Centre, NY 11570

Edward W. McCarty, J.

In this administration proceeding, the decedent, Stewart Texin (a/k/a Stuart Texin), died on April 22, 2010. He was survived by his spouse, Linda Texin (hereinafter "Linda"), from whom he was separated pursuant to an agreement dated September 26, 2002 and an addendum thereto dated July 24, 2009 (hereinafter "the Agreement"), and two daughters, Jessica Lee Texin (hereinafter "Jessica") and Melissa Ashley Texin (hereinafter "Melissa"). Linda filed a petition dated September 12, 2011 seeking letters of administration. Subsequent thereto, Melissa filed a cross-petition dated January 9, 2012, and an amended cross-petition dated March 9, 2012 (hereinafter "Melissa's cross-petition"), requesting, instead, that letters of administration issue to her on the ground that Linda was disqualified as the decedent's spouse pursuant to EPTL 5-1.2. On April 13, 2012, Linda withdrew her petition and, on June 8, 2012, Jessica filed a second cross-petition (hereinafter "Jessica's cross-petition") praying for the issuance of letters of administration to her.

Jessica's petition is supported by a Waiver and Consent from Linda, who seemingly still claims to be a distributee of the decedent's estate. In addition, Jessica's counsel has submitted an affirmation asserting that Melissa should not be appointed as administrator because "Melissa and her mother Linda have had an incompatible mother-daughter relationship" through the years and Melissa has a "negative personal bias towards her mother." According to Jessica's counsel, Melissa's bias would undermine and interfere with the impartiality required by a fiduciary. Counsel argues that "[i]f Melissa were to be appointed the administrator of this estate, she could utilize her position as a launching pad for lawsuits against Linda based upon her bias that would unnecessarily burden the estate with large administration expense, namely legal fees and expenses associated with litigation." Counsel claims that Linda's possible right to exempt [*2]property under EPTL 5-3.1, liability to the estate based upon the Agreement and SCPA 2103 issues need to be reviewed "through the prism of the modest size of this estate."

Melissa objects to Jessica's cross-petition on the grounds that Jessica undervalued the size of the estate in her petition by failing to include the decedent's 2001 Toyota Highlander which Linda allegedly took after the decedent's death. In addition, Melissa asserts that Jessica is biased and sympathetic towards Linda as shown by Jessica's failure to clarify in her cross- petition that the decedent and Linda were legally separated and estranged for many years.

Both cross-petitioners are equally eligible to serve (SCPA 1001 [1] [f]), and neither contends that the other is statutorily disqualified from serving as fiduciary of the estate. Where, as here, two apparently eligible distributees have the same share in the estate and, accordingly, are equally entitled to administer the estate, the court has the discretion to appoint one or both of them (SCPA 1001 [1] [f] [i]). In the absence of circumstances militating in favor of a different result, the court will appoint the distributee selected by the distributees entitled to the largest share of the estate (SCPA 1001 [1] [f]; Matter of Doyle, 10 Misc 3d 1077 A, 2006 NY Slip Op 50108 [U] [Sur Ct, Bronx County 2006]), or if the shares are equal, the one preferred by a majority of the distributees (Matter of Wu, 6 Misc 3d 1012 A, 2004 NY Slip Op 51777 [U] [Sur Ct, Westchester County 2004]). Where there is apparent antagonism between persons in the same class of priority and they are unable to agree, the court will avoid issuing letters to them jointly, as it is probable that they will be incapable of administering the estate together (Matter of Florio, 26 Misc 3d 1048, 2009 NY Slip Op 29532 [Sur Ct, Nassau County 2009]).

In exercising its discretion to select one of multiple distributees, the court may consider such factors as each distributee's: (1) relationship with the decedent; (2) business experience; and (3) familiarity with the decedent's affairs (Matter of Florio, 26 Misc 3d 1048, 2009 NY Slip Op 29532 [Sur Ct, Nassau County 2009]). The court will exercise its discretion to appoint the distributee whose appointment the court finds to be in the best interests of the estate (Matter of Eisenstein, 158 AD2d 597 [2d Dept 1990]).

Here, Jessica's petition is supported by Linda's Waiver and Consent. Linda's Waiver and Consent, however, is of no effect if, in fact, she is not a distributee entitled to a share of the decedent's estate. Paragraph 13 of the Agreement provides as follows:

"13. Mutual Release and Discharge of Claims In Estates. Each party shall have the right to dispose of the property of such party by last will and testament in such manner as such party may deem proper in the sole discretion of such party, with the same force and effect as if the other party had died. Each party, individually and for his or her heirs, executors, administrators, successors and assigns, hereby waives, releases and relinquishes any and all claims, rights or interests as a surviving spouse in or to any property, real or personal, which the other party owns or possesses at death, or to which the other party or his or her estate may be entitled. Each party expressly waives all rights which he or she now or may hereafter have pursuant to any provisions of the laws of any State or country which may have jurisdiction over the estate of either party hereto on his or her death, as now or hereafter in effect, to elect to take in contravention of the terms of any will of the other party, whether now or hereafter executed. Each party recognizes that this wavier includes rights that he or she otherwise might have or acquire under New York Estates, Powers and Trusts Law Section 5-1.1, any amendment thereof or any successor statute. The foregoing, however, shall not bar a claim on the part of either party for any cause arising out [*3]of a breach of this Agreement during the lifetime of the deceased party against whose estate such claim may be made."

Thus, regardless of whether Linda was "legally separated and estranged" from the decedent for many years, as Melissa alleges, pursuant to the Agreement Linda relinquished her rights in the decedent's estate. The question does remain, however, whether Linda also forfeited her rights to exempt property under EPTL 5-3.1, since it is well-settled that a spouse must clearly indicate an intention to relinquish the right to exempt property under EPTL 5-3.1 in a separation agreement (Matter of Dito, 218 AD2d 737 [2d Dept 1995]; Matter of DeRoo, 148 Misc 2d 856 [Sur Ct, Yates County 1990]). Under the circumstances alleged here, even if the language of the agreement is not sufficiently specific to constitute a waiver of her rights to exempt property Linda may still be disqualified as a surviving spouse for purposes of EPTL 5-3.1 if she abandoned the decedent (EPTL 5-1.2). For purposes of the applications before the court in this proceeding, the court notes that items of exempt property under EPTL 5-3.1 are not considered assets of the estate but instead are set off to the surviving spouse assuming no disqualification or waiver. Accordingly, any claim Linda may have to exempt property under EPTL 5-3.1 does not render any weight to her Waiver and Consent. Therefore, Linda's Waiver and Consent to Jessica's appointment is of no consequence with respect to the appointment of an administrator.

The court is, therefore, left with Melissa and Jessica petitioning for appointment on equal footing. Melissa's main contention is that Jessica will not pursue claims the estate may have against Linda or defend the estate against claims Linda may assert. If letters of administration issue to Jessica, and Melissa is correct that Jessica's sympathy for Linda would affect her fiduciary obligations, pursuit of those claims would require Melissa to obtain limited letters of administration, which would only necessitate further expense and delay. If, on the other hand, Melissa pursues frivolous claims and incurs unnecessary expense for the estate, as Jessica claims, Jessica would have recourse against Melissa in an accounting proceeding. The potential imposition of a surcharge for the pursuit of frivolous claims presumably should serve as a deterrent to Melissa.

The court is mindful of Jessica's more sympathetic view towards her mother as demonstrated herein, and is concerned that she may not assert proper claims against Linda or defend the estate from claims Linda may raise, including but not limited to, a claim for exempt property (EPTL 5-3.1). The court notes that Jessica's cross-petition was filed after Melissa's cross-petition and approximately two months after Linda withdrew her petition. Melissa correctly asserts that Jessica's cross-petition fails to mention Linda's possible disqualification or the Agreement. Accordingly, the court finds Melissa's appointment as administrator is in the best interests of the estate, and Melissa's cross-petition is granted and Jessica's cross-petition is dismissed. Letters of administration shall issue to Melissa upon her posting a bond in the amount of $56,000.00.

Settle decree.

Dated: December 19, 2012


Judge of the [*4]

Surrogate's Court