Accomplishing exactly the opposite of what the decedent no doubt intended, two thousand (2,000) shares of stock in the International Business Machines Corp. ["IBM"] have driven a perfidious wedge into the surviving family of Ruth Hansell.

Decedent died on January 9, 2013 survived by her daughters Beverly Silbertang and Golda M. Pearlman, residuary legatees and co-executors of her estate under her will admitted to probate in this court on July 19, 2013. [*2]

In companion proceedings now before the court, Golda petitions to remove her sister as co-executor pursuant to SCPA 711 and 719 and Beverly in a separate petition seeks relief pursuant to SCPA 2107 (2) and 2102 (6) directing Golda: to agree to lift a stay on appeal to the Appellate Divison, Second Department; to allow an amendment to the caption on appeal [substituting the estate] to allow the estate to adopt the brief previously submitted on the appeal on behalf of decedent; and, to consent to the continued prosecution of the action commenced in Supreme Court, Nassau County under Index No. 23601/10 (the "Supreme Court action")^[FN1]

The backdrop for all the vituperation begins with what follows.

On or about July 16, 1999, decedent caused to be signed seven (7) identical letter agreements by her grandchildren, great grandchildren and /or the natural guardians of minor great grandchildren whereby they all agreed to certain terms and conditions under which Ruth revocably transferred 2000 shares of IBM stock to their names. To the extent relevant here, the language in the letter/agreements provided that Ruth had the undisputed right to "take back the stock" and further that each grandchild, etc. would in essence exercise no ownership rights over/to their shares until Ruth's death. When Ruth is claimed to have demanded return of the stock in late 2010 and only one grandchild [apparently Beverly's only child ] complied, she commenced an action in February of 2011 to enforce her rights to the stock against her remaining grandchildren, etc. After a motion for summary judgment by her was denied pending discovery [Karen Murphy, J.] and an appeal taken from that decision and order and perfected in the Appellate Division, Second Department, decedent died and a schism had developed between her daughters/executors as regards continuing the litigation.

Beverly petitions the court to authorize the estate to continue to prosecute the Supreme Court litigation. The opposition to the petition by Golda is simply and not surprisingly that there is no merit to the lawsuit.^[FN2]

SCPA 2107 (2) provides that the court may give advice and direction in extraordinary circumstances such as a conflict among interested parties. Further, SCPA 2102(6) more pointedly states that a proceeding may be maintained against a fiduciary seeking the court's direction when two or more fiduciaries cannot agree with respect to " . . . any issue affecting the estate." Where fiduciaries disagree whether the estate should pursue claims is clearly a circumstance warranting direction (see Matter of Stanley, 240 AD2d 268 [1st Dept 1997]). In the instant proceeding, the administration of this estate has been frozen by the co-fiduciaries complete disagreement as to the pursuit of the Supreme Court action. This stock appears to be the only significant probate asset and the estate has a viable claim to the stock.

The court therefore authorizes Beverly to proceed with the Supreme Court action on behalf of the estate.

The timing of the removal petition as much as anything else has the appearance of a preemptive counterstrike by Golda. Nevertheless, Golda alleges the following misdeeds by her [*3]sister:

After initially refusing to produce the original will, commencing a probate proceeding and seeking to have letters issue to her only;

Failing to submit a probate decree;

Refusing to open an estate bank account;

Refusing to share information about the IBM stock:

Signing decedent's 2012 income tax return one day before the issuance of letters;

Selling estate assets (a 13 year old car and some use furniture) and while dividing the proceeds fairly the checks were payable to the sisters personally rather than negotiated through an estate account;

Commingling and converting assets of the estate.

The removal of a fiduciary is a drastic remedy normally warranting a hearing. The

testator enjoys the right to determine who is the most qualified and his or her "solemn selection

is not lightly to be disregarded" (Matter of Leland, 219 NY 387, 393 [1916]). The Surrogate

may only remove the fiduciary "where the misconduct is established by undisputed facts or

concessions, where the fiduciary's in court conduct causes such facts to be within the court's

knowledge or where facts warranting the amendment are presented to the court during a related evidentiary hearing" (Matter of Duke, 87 NY2d 465, 472 [1996] internal citations omitted).

Removal will be exercised sparingly and only upon a clear showing of serious misconduct that

endangers the safety of the estate (id. at 473).

Beverly's verified answer and additional sworn response to the petition responds point by

point to these allegations. While it does not appear that any of the complained of conduct would be sufficient to justify revoking Beverly's letters, no discovery has been conducted and summary dismissal appears premature at this time. This matter will appear on the court's calendar for a conference on May 14, 2014, at 9:30 a.m. to enter a discovery order if Golda wishes to pursue the petition to revoke Beverly's letters.

This constitutes the decision and order of the court.

Dated: May 8, 2014

EDWARD W. McCARTY III

Judge of the

Surrogate's Court