This matter comes on by Petition of Randy Sheppard for Letters of Administration in regard to the Estate of Gerald B. Sheppard. Objections were filed by Cheryl Buono along with a Cross-Petition for Letters of Administration to be issued jointly to Randy Sheppard and herself or, in the alternative, for Letters of Administration to be issued solely to her. Jacob Sheppard files objections to the Petition of Randy Sheppard and joins with Cheryl Buono to have Randy Sheppard and Cheryl Buono issued Letters of Administration jointly or, in the alternative, for [*2]Letters of Administration to be issued to Cheryl Buono solely.

Leah Rhinesmith filed letter/objection requesting Letters of Administration to be issued jointly to Randy Sheppard and Cheryl Buono.

Gerald B. Sheppard died intestate on September 24, 2006 leaving as sole survivors and distributees ten brothers and sisters.

Randy Sheppard, a brother, petitioned this Court for Letters of Administration (Letters).

Cheryl Buono, a sister, objected and filed a cross-petition seeking Letters to be issued jointly as co-administrator with Randy Sheppard or, in the alternative, solely to herself.

Jacob Sheppard, a brother, filed objections to the petition of Randy Sheppard and joined in the petition of Cheryl Buono.

Leah Rhinesmith, a sister, filed a letter/objection seeking to have Randy Sheppard and Cheryl Buono issued Letters as co-administrators.

Randy Sheppard filed a letter/reply to the objections and cross-petition of Cheryl Buono.

After citations and waivers were filed with this Court, seven brothers and sisters supported Randy Sheppard for sole Letters, two supported Cheryl Buono for joint Letters, or in the alternative, for Cheryl Buono solely, and one sister supported joint Letters for Randy Sheppard and Cheryl Buono.

Randy Sheppard alleges that there is hostility between himself and his sister Cheryl Buono.

The issue herein centers around the argument of Randy Sheppard that the Surrogate Court Procedure Act (SCPA) 1001(1)(f) requires this Court to grant sole Letters to him as seven of the [*3]ten brothers and sisters, which represent seventy (70) percent of the estate, constitute the largest share of the estate.

SCPA 1001(1) reads as follows:

"1. Letters of administration must be granted to the persons

who are distributees of an intestate and who are eligible

and qualify, in the following order:

(a) the surviving spouse,

(b) the children,

(c) the grandchildren,

(d) the father or mother,

(e) the brothers or sisters,

(f) any other persons who are distributees and who are

eligible and qualify, preference being given to

the person entitled to the largest share in the

estate, except as hereinafter provided:

(i) Where there are eligible distributees equally

entitled to administer the court may grant letters

of administration to one or more such persons."

(emphasis added.)

The terms of SCPA §1001(1) are clear and explicit and the legislative intent easily observable. The order of eligibility is to be taken in descending order from subdivisions (a) through (f) with each subdivision having priority over the superceding categories.

This matter requires the appointment of an administrator or co-administrators under SCPA §1001(1)(e) not 1001(1)(f).

Randy Sheppard is correct that courts have used the "persons entitled to the largest share" in determining the granting of Letters of Administration to one person over another. However, courts have done so as a matter of discretion, when faced with petitioners within the same category in subdivisions (a) through (e) and when Letters should not be granted to co-administrators, who are on equal footing eligibility wise, because of hostility or some other non-compatibility to work together, not as the statutory mandated directive when dealing with the category of "any other persons" in category (f).

For instance, Petitioner Randy Sheppard cites Matter of the Estate of Pearsall, 191 Misc 2d 66 (Surr. Ct., Nassau Cty., 2002) [*4]

and Matter of the Estate of Doyle, 10 Misc 3d 1007A, 2006 Slip Op 50108U (Surr. Ct., Bronx Cty., 2006) for the proposition that courts give preference to the "person with the largest share in granting Letters. This argument is misplaced.

Both Pearsall, Infra. and Doyle, Infra. deal with Letters under SCPA §1001(1)(f) not 1001(1)(e) as this matter dictates.

Pearsall dealt with cousins (f) and Doyle dealt with nieces and nephews (f). The within matter deals with brothers and sisters (e).

Specifically in Pearsall, the court equating Code of Civil Procedure §2588(8) with the current SCPA §1001(1) stating that the preference for a distributee having the largest share occurs "outside the order of priority." Pearsall, Infra at p69.

Petitioner Randy Sheppard also cites Matter of the Estate of Edelson, 88 AD2d 640 (App. Div., 2nd Dept (1982). Though Edelson, Infra. granted letters to one child of the deceased over another under SCPA §1001(1)(b), the court chose one child over another because of hostility between the children and did so as a matter of discretion not mandate.

Petitioner also argues that Matter of the Estate of Eggsware, 123 Misc. 548 (Surr. Ct., Clinton Cty. (1924) is on "all fours" with the case at bar. This is inaccurate.

Eggsware, Infra., though decided in 1924 under predecessor Surrogate statutes, is applicable because of the courts use of the order of priority in granting Letters. However, Eggsware was a case involving children of the deceased [what is now SCPA §1001(1)(b)] not "any others persons" [what is now SCPA §1001(1)(f)] as is the within matter. Additionally, Eggsware granted Letters to one child over another child, in the same class, based upon hostility between the petitioners and the discretion of the Court. As stated in Eggsware, Infra. at p 551,

"...it has been customary for the surrogate in his discretion to issue letters to the one who represented the majority of the interested parties and a majority interest of the property of the estate" and further at page 551, "In view of the apparent hostility which exists between the rival petitioners,...".

(emphasis added).

Matter of the Estate of Nocera, 10 Misc 2d 495 (Surr. Ct., Richmond Cty (1958) is mirror image of Eggsware, Infra. granting [*5]Letters to one child over another child [same class of priority in now SCPA §1001(1)(b)] in the court's discretion because of hostility between the rival petitioners.

In the case at bar petitioner Randy Sheppard alleges hostility between the two the rival petitioners, himself and Cheryl Buono. However, there is no showing or evidence of hostility other than the bare allegation.

Upon a proper petition this Court may grant Letters to one or more distributees having a prior or equal right to such Letters of Administration. SCPA §1001(5).

Based upon the above, it is

ORDERED, that this Court shall conduct an evidentiary hearing on Thursday, October 11, 2007 at 10:00 am in the Sullivan County Courthouse.

This shall constitute the Decision and Order of this Court.

DATED: August 23, 2007

Monticello, NY

__________________________________Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate