In this probate proceeding, the proponent, Thomas G. Johnson, a devisee and nominated co-executor under the propounded instrument dated February 16, 1994, moves for summary judgment admitting the will to probate; dismissing the joint objections filed by Anthony Lewis, the decedent's cousin, who is the beneficiary of a larger bequest under an earlier testamentary instrument, and Earl Phinizy, the decedent's brother and distributee; and dismissing the brother's petition for letters of administration. The objectants oppose the motion and cross move to dismiss the proponent's application for letters testamentary and for the appointment of either or both of them as the fiduciary of the estate. They allege that the 1994 instrument is invalid due to lack of due execution, lack of testamentary capacity, forgery, undue influence and fraud. They further assert that the petitioner's prior felony convictions render him ineligible to be appointed a fiduciary of the estate.

The decedent, a widow, died on October 23, 2003, at the age of 77. Although the decedent referred to both the proponent and the objectant, Anthony, as her sons in the propounded instrument, neither one of them is actually her son. Her distributees are the objectant brother and a sister. The multi-family dwelling, where the decedent, the proponent and Anthony all resided, is devised to the proponent under the propounded instrument and the remainder of her estate, including real property located in North Carolina, is bequeathed to Anthony. The proponent and Anthony are the nominated co-executors.

Based upon the above determinations of the court, the motion for summary judgment, requesting the dismissal of the objections, the dismissal of the brother's petition for letters of administration and the admission of the propounded instrument to probate, is granted. However, there still remains to be determined the cross-motion contending that the proponent is ineligible to be appointed the executor of the estate. Although the decedent's brother no longer has status to pursue this motion because the dismissal of the objections to probate results in his not having any financial interest in the estate, Anthony, as the beneficiary under the will of the entire estate other than the Bronx real property, has standing to request that he be appointed as the sole executor of the estate instead of as a co-executor with the proponent as provided in the will.

The proponent concedes that he has been convicted of possession of narcotics, assault, burglary and possession of stolen property; that some of the convictions were felonies; and that he has served time in several prisons, Rikers Island, Ossining, Attica and Napanoch. Although [*2]these felony convictions would ordinarily render the proponent ineligible to receive letters testamentary (SCPA 707[1][b]), the proponent asserts that he should be permitted to serve as executor because he obtained a certificate of relief from civil disabilities dated August 31, 1986.

A certificate of relief from civil disabilities permits the court, in its discretion, to appoint a person who was previously convicted of a felony as a fiduciary of the estate, but the court should not exercise such discretion where there is a concern that the person requesting the letters might be ineligible under SCPA 707(1)(e) by "reason of...dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office" (Matter of Pullman, 89 AD2d 608 [1982]). Notwithstanding that the court is cognizant of the fact that it does not appear that the proponent has been involved in any criminal activity for more than a quarter of a century and that the selection of a fiduciary by the testator is entitled to great deference (Matter of Duke, 87 NY2d 465 [1996]; Matter of Leland, 219 NY 387 [1916]), under the unique facts of this case, the court finds that Anthony should be appointed as the sole executor of the estate.

Here, the proponent's interest in the estate is limited to the specifically devised Bronx real property. Upon the admission of the will to probate, the real property vests in the proponent as of the date of the decedent's death subject only to the executor's right to sell the property should it be necessary to meet estate obligations (Waxson Realty Corporation v. Rothschild, 255 NY 332 [1931]; Barber v. Terry, 224 NY 334 [1918]; Matter of Seviroli, 31 AD3d 452 [2006]). Thus, the proponent does not need letters to assume ownership of the property. On the other hand, Anthony is the sole person who has a financial interest in any other property that passes pursuant to the will. The sole subject upon which the proponent and Anthony appear to agree is that there is a significant amount of hostility between them. Usually, hostility between a nominated executor and a beneficiary, standing by itself, is not a sufficient reason to deny letters to the nominated executor. However, there are instances where the hostility coupled with other factors warrant the denial of letters to a person who would otherwise have priority (Matter of Rad, 162 Misc 2d 229 [1994]). The court exercises its discretion in favor of granting letters only to Anthony and denying letters to the proponent for the following reasons: (1) the hostility between the proponent and Anthony portends problems with their agreeing upon the manner in which the estate should be administered; (2) the proponent has been convicted of crimes, albeit many years ago, such as burglary and receipt of stolen property, which reflect dishonesty; (3) there is an allegation that the proponent improperly obtained some of the decedent's assets shortly prior to her death and, consequently, the proponent as a co-executor could not simultaneously be the petitioner and respondent in a discovery proceeding to recover assets from himself (SCPA 702[8][9]; Matter of Teah, 166 Misc 2d 976 [1996]); and (4) the proponent does not need letters to become the owner of the real property devised to him under the will. Accordingly, the cross-motion is granted to the extent that the proponent's application for letters testamentary is denied and letters testamentary shall issue solely to Anthony.

Settle decree.

SURROGATE