This petition by Philip A. Mactaggart ("petitioner") for a decree authorizing him to purchase real estate located at 7 Edgewood Lane, Millbrook, New York, is denied.

The subject property was formerly owned by the decedent. She died intestate on February 15, 2009 survived by two (2) infant distributees. They are the out of wedlock children of the petitioner and the decedent.

The petitioner is the administrator of the estate and the guardian of the property for each child. This court previously denied an application filed by the petitioner to permit him to transfer the subject property for the benefit of the decedent's niece, "Charly" a/k/a Lauren C. Woodcock, so as to carry out the decedent's wishes. That decision, dated and entered December 2, 2009, was based upon established law that title to the property vested in her children as tenants in common when she died intestate on February 15, 2009. (Matter of Jemzura, 65 AD2d 656, 657 [3d Dept. 1978], affirmed 52 NY2d 1067 [1981].) Moreover, the real property did not become an asset of the estate subject to administration. (Matter of Jemzura, supra.) There was no legal basis to grant the relief requested by the petitioner.

In the current application, the petitioner proposes to pay the gross sum of $325,000.00 for the real estate. The value is based upon a broker's opinion attached to the petition. The petitioner would then transfer the net sum of $304,278.00, after deducting the broker's commission and New York State transfer tax, to himself as guardian of the property for the two infants. He would own the property and make lifetime planning arrangements to ensure that it will be held and used for Charly's benefit. (Petition, ¶6).

A guardian is defined as a fiduciary. (SCPA §103[21]]. A fiduciary has the duty of [*2]undivided loyalty, that is, the duty against self-dealing. Neither bad faith nor personal gain need be shown. The issue for the court's determination is whether the fiduciary has placed himself in a position where his interest may be in conflict with his duty. (5 Warren's Heaton on Surrogate's Court Practice, 7th ed., §6.02[2].) A common breach of the standard of undivided loyalty occurs in the sale of estate property by a fiduciary to himself. (5 Warren's Heaton, supra.)

Petitioner's status as guardian of the property of the decedent's only distributees creates an obvious conflict of interest pertaining to the proposed transaction. His fidelity is owed exclusively to the two children he had with the decedent, the lawful owners of the real estate in question, not the decedent's pre-death intentions concerning her niece. "A person standing in the relation of a fiduciary capacity, cannot deal with or purchase the property, in reference to which he holds that relation.'" (Matter of Kinzler, 195 AD2d 464, 466 [2d Dept. 1993].)

This constitutes the decision and decree of the Court.

Dated:Poughkeepsie, New York

March 3, 2010

ENTER

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