[*1]
Matter of Anderson
2007 NY Slip Op 51202(U) [16 Misc 3d 1101(A)]
Decided on June 14, 2007
Sur Ct, Dutchess County
Pagones, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2007
Sur Ct, Dutchess County


In the Matter of the Application of Amanda B. Anderson and Marianne E. Anderson, for a Decree Vacating and/or Revoking Letters Testamentary of the Last Will and Testament of Margaretta M. Anderson a/k/a Margaret M. Anderson, Deceased, Heretofore issued to Daniel F. Curtin, and Granting Other Relief




95815/07



AMY HOLZMAN, ESQ.

GUZOV OFSINK, LLC

Attorneys for Petitioners

600 Madison Avenue, 14th Floor

New York, New York 10022

ROBERT L. LACKAYE, ESQ.

Attorney for Executor

DANIEL F. CURTIN

90 Market Street

Poughkeepsie, New York 12601

THOMAS E. DIETZ, ESQ.

DIETZ & DIETZ, LLP

Attorneys for Residuary Legatee

SARAH A. COGAN

Two Cannon Street, Suite 207

Poughkeepsie, New York 12601

James D. Pagones, J.

Amanda B. Anderson and Marianne E. Anderson, intestate distributees and residuary legatees named in the Last Will and Testament of Margaretta M. Anderson a/k/a Margaret M. Anderson (decedent) have filed separate petitions but move jointly for an order (1) vacating the decree entering the Last Will and Testament of the decedent into probate and granting letters testamentary to Daniel F. Curtin (Curtin); (2) revoking the letters testamentary granted to Curtin under the Last Will and Testament of the decedent; (3) suspending Curtin as executor under the Last Will and Testament of the decedent during the pendency of this proceeding, from the exercise of his powers and authority as such executor; and (4) awarding petitioners their reasonable attorney's fees and costs in this proceeding.

BACKGROUND

The will is dated May 1, 2002. The decedent nominated Daniel F. Curtin, Esq. to serve as executor of the estate. The decedent died testate on January 5, 2007. Curtin was issued letters testamentary on March 8, 2007. Decedent's daughters, Amanda B. Anderson and Marianne E. Anderson did not object to probate but now petition for Curtin's removal. The third remaining residuary legatee, Sarah A. Cogan, does not challenge Curtin's appointment.

On November 9, 2005, Curtin pled guilty in the United States District Court for the Southern District of New York to one misdemeanor count of unlawfully receiving a portion of real estate settlement charges, a violation of the Real Estate Settlement Practices Act. (12 U.S.C.A. §2607[b].) The Magistrate Judge ordered Curtin to pay a fine and a mandatory surcharge but did not order Curtin to pay restitution. Curtin was not sentenced to any jail time or [*2]probation. The instant petition to vacate and/or revoke asserts two grounds for the relief sought: (1) alleged failure to properly serve citation, and (2) alleged ineligibility of the named executor.

PERSONAL JURISDICTION


The Surrogate can vacate a probate decree if he receives new evidence that raises the issue of the instrument's invalidity. (See Matter of Deneau, N.Y.L.J., Aug. 19, 1987, at 13 col. 1 [Surr Ct Nassau County].) In her petition, Amanda B. Anderson alleges that service upon her was improper and requests that this Court vacate its prior decree, issue a new citation and direct Curtin to serve petitioner in accordance with the relevant provisions of the CPLR and SCPA. In a letter dated March 8, 2007, petitioner's attorney states that petitioner does not object to the probate of the will, but only to the appointment of Daniel F. Curtin as executor. Neither of the instant petitions asserts any grounds to challenge the validity of decedent's will.

Petitioner demands that the court vacate the decree admitting the will to probate even though she articulates no basis to object to the validity of the will. Such an exercise would constitute a waste of judicial resources and might be considered frivolous conduct. Petitioner's objection to the appointment of Daniel Curtin may be properly addressed without vacating the existing decree.

VACATING THE DECREE GRANTING LETTERS TESTAMENTARY

TO DANIEL F. CURTIN

A testator's selection of a fiduciary must be given great deference. The Surrogate's power to refuse to grant letters is limited by statute.The grounds for the Surrogate to decline to issue letters are limited to those specifically set forth in SCPA §§707 and 711. Under SCPA §707, a person is ineligible to receive letters if he is convicted of a crime constituting a felony under New York law. (Matter of Gulbrandsen, 11 Misc 3d 1073A [Surr Ct, Dutchess County 2006]; Turano & Radigan, New York Estate Administration, 2007 Edition, §14.02[c]; SCPA §707[1][d].) This is not the case here. Even if petitioner had objected prior to letters issuing, there is no basis to the petition. There is no New York State statute comparable to 12 U.S.C.A. §2607(b) and Curtin's misconduct is not a crime in New York. There is no basis in the record to disqualify Curtin under SCPA §707[1][d].

An individual is also ineligible to receive letters testamentary if he does not possess the qualifications required of a fiduciary by reason of dishonesty. (SCPA §707[1][d].) To prove dishonesty, a petitioner must show that a nominated executor has a pattern of financial wrongdoing that poses a genuine, serious risk to sound management of the estate. (In re Flood's Will, 236 NY 408 [1923]; In re Mecko's Will, 70 NYS2d 41, 45 [Surr Ct, Broome County 1947].) Curtin's misdemeanor conviction, tangentially related to financial matters, does not constitute "dishonesty" sufficient to disqualify him under SCPA §707(1)(d). (In re Estate of Cohen, 164 Misc. 98, 100 [Surr Ct, Kings County 1937] aff'd 254 A.D. 571 [1938].) Petitioner must show that the nominated executor has a tendency or "habit of mind" toward wrongful financial conduct. (In re Estate of Cohen, supra .)

Although Curtin's wrongdoing involved money, the transaction at issue was victimless. [*3]No client of Curtin suffered any loss as a result of his receipt of payments. The District Court did not order Curtin to pay restitution or sentence him to jail time or probation. While this Court does not condone Curtin's misconduct, I find that it is insufficient to warrant disqualification under SCPA §707[1][e].

REVOKING LETTERS TESTAMENTARY GRANTED TO CURTIN

UNDER DECEDENT'S WILL

A court can remove a fiduciary or modify his letters if the fiduciary was or has become ineligible or disqualified and the petitioner did not object prior to the issuance of letters testamentary. (SCPA §711[1].) Fiduciaries are typically removed only in cases of serious misconduct or where the safety of the fund is endangered (Turano & Radigan, supra , §14.04[a][1][A].)

A petitioner's allegations that a fiduciary has a claim against the estate or a conflict of interest with the estate is not sufficient to justify removal (Turano & Radigan, supra , §14.04[a][1][A]; see also Matter of Weiss, 33 Misc 2d 773, 776 [Surr Ct, New York County 1962].) An executor cannot be removed from office or enjoined in anticipation of a possible wrongdoing. (Matter of Weiss, supra .)

Co-petitioners allege a conflict of interest in Curtin's dual role as attorney and executor. Co-petitioners' specific fear is that, in light of Curtin's guilty plea and misdemeanor conviction, Curtin will seek payment for legal fees (for himself and his attorney) and expenses for services never performed for the estate, or in an amount far in excess of their worth. Co-petitioners contend that this anticipatory conflict of interest, Curtin's misdemeanor violation, and Curtin's domiciliary in Florida make Curtin unfit to continue to act as executor. Assuming all of the allegations to be true, I find that petitioners have not alleged misconduct severe enough to constitute serious misconduct; have failed to demonstrate a substantial conflict of interest or to establish on a prima facie basis that Curtin is unfit to continue to act as executor. That does not mean that Curtin's conduct as Executor may not be further scrutinized by the court. This Court retains jurisdiction at all times to direct Curtin to account (SCPA § 2205) and to fix his compensation. (SCPA § 2110.)

AWARDING PETITIONERS REASONABLE ATTORNEY'S

FEES AND COSTS

At any time during the administration of an estate and irrespective of the pendency of a particular proceeding, the Surrogate is authorized to fix and determine the compensation of an attorney for services rendered to a devisee, legatee, distributee or any person interested (SCPA §2110[2].) The Surrogate has broad discretion in determining what constitutes reasonable compensation for legal services (In re Estate of Jakobson, 304 AD2d 579 [2nd Dept. 2003] lv appl den 100 NY2d 515 [2003].) Petitioners have failed to show how the work of their attorneys has benefitted decedent's estate. I have reviewed the record and have determined that petitioners' attorneys are not entitled to an award of attorney's fees and costs. [*4]

Accordingly, petitioners' respective petitions to vacate and/or revoke letters testamentary must be dismissed in their entirety.

Counsel for the executor is directed to submit a decree consistent with the foregoing within ten (10) days of service of a copy of this decision.

The Court considered the petitions, Holzman letter and Curtin affirmation with memorandum of law.The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

June 14, 2007

ENTER

HON. JAMES D. PAGONES, S.C.J.

TO:

061107 decision

Amy Holzman, Esq.

Guzov Ofsink, LLC

600 Madison Avenue, 14th Floor

New York, New York 10022

Robert L. Lackaye, Esq.

90 Market Street

Poughkeepsie, New York 12601

Thomas E. Dietz, Esq.

Dietz & Dietz, LLP

Two Cannon Street, Suite 207

Poughkeepsie, New York 12601