Margaret E. Bacon [hereafter, decedent] died at age 96 at her Canterbury Woods home in Amherst, New York, on November 7, 2016. She was predeceased by her husband, Paul, who passed away on February 2002, and she was survived by two children: her son, Dr. Douglas Bacon [hereafter, Douglas], and her daughter, Jane Bacon Pedersen [hereafter, Jane].

Decedent's Last Will and Testament dated December 27, 1995, in effect, divides her estate equally between Douglas and Jane. The Will also nominates Paul as executor, and Jane is named successor executor. Following apparent extended discussions between Jane and Douglas about their mother's estate, which did not resolve whatever differences exist[ed] between them, Douglas filed a petition for probate of decedent's Will in November, 2017, and sought to be appointed administrator CTA of the estate. Jane subsequently filed her own probate petition. This Court issued letters of temporary administration CTA to Douglas on November 29, 2017.

On September 10, 2018, Douglas filed a petition pursuant to SCPA 2103 for discovery seeking to recover assets for the estate which he alleges that Jane, her husband, and their children had wrongly taken. Douglas also claims (1) that an Addendum to decedent's Canterbury [*2]Woods Residency Agreement,^[FN1] which was executed on May 27, 2011 by decedent, is not legally binding as it was not duly executed and notarized, (2) that Jane improperly used the Power of Attorney given to her by decedent to make gifts and loans from decedent's Merrill Lynch account to herself and members of her family, (3) that Jane took and converted numerous items of decedent's jewelry, and (4) that Jane inappropriately utilized decedent's credit cards and funds in decedent's Key Bank joint bank account.

Jane interposed a verified answer to the petition on December 3, 2018. In that answer, which denies any impropriety on her part, Jane also asserted two counterclaims: first, that Douglas owes the estate moneys for loans decedent had made to him, some part of which remained unpaid when decedent died; and second, that Douglas took a number of items of personal property, "including but not limited to jewelry and a stamp collection" which "must be returned to the estate". Douglas interposed a verified reply to the counterclaim.

Following unsuccessful attempts to mediate their disputes, the parties returned to the litigation track in this court. By Memorandum and Order dated June 9, 2021, this Court, inter alia, deferred Jane's motion for summary judgment and Douglas' cross-motion for the same relief while the parties continued disclosure efforts. Each party then took the other party's deposition, among other discovery that occurred.

Pending now before me are the parties' renewed motions for summary judgment. Those motions having been finally submitted, I now find and decide as follows.

I believe it is essential to understanding the issues now before me to first look at the background of the parties and their families.

Decedent was married to Paul, and they had two children, Jane and Douglas. There is deposition testimony that their parents paid for both Jane's and Douglas' college education.

Paul, who was an administrator at the State University of New York at Buffalo, died at age 82 in July, 2002.^[FN2] His estate was valued at approximately $1.2 million dollars, and he also left non-probate assets of approximately $670,000. The personalty in Paul's estate was left to decedent, and his December 27, 1995 Will, which was admitted to probate by this Court [MATTINA, J] on July 2, 2002, set up a credit shelter trust — also denominated in the Will as the "Family Trust" — for the primary benefit of decedent. Paul's residuary estate also passed to decedent. Under Paul's Will, when decedent died, any balance in the Family Trust passes to Jane and Douglas.

Decedent was an Art Professor at Daemen College, Amherst, New York and at the [*3]University of Buffalo, Buffalo, New York. Her Will, which as noted supra was also executed on December 27, 1995, is essentially a mirror image of Paul's Will. An agreed-upon Order was submitted to this Court on June 3, 2022, admitting that Will to probate, but keeping open the still-disputed issue of who should be appointed as fiduciary of the estate on a permanent basis — that is, whether Douglas should receive full letters of administration CTA, or whether Jane should become executor (as the Will contemplates). That Order was signed on June 6, 2022.

Jane, who lives in the Rochester, New York, area, is married to Mark Pedersen.^[FN3] Jane is an attorney, who also has a master's degree in business administration, and her law practice centers in the area of real estate and tax law. Jane and Mark have four children: Todd, Ross, Jena and Adam. Todd graduated from dental school in 2015, Ross has an MBA from Stanford University, Jena received her law degree in 2021, and Adam is still in undergraduate school.

Jane testified at her deposition — which has been submitted by Douglas as part of his motion papers — that, from 2005 until her mother's death in 2016, she visited her mother "[f]requently, very frequently":

"Q. Does frequently — how many times per week?

A. Well, toward the end it was at least two or three times per week. I mean, in the beginning it wasn't consistent because when my father was dying we were there much more frequently. I would say average at least once a week.

Q. When you say average, do you mean after your father's death average once a week or — or did that —

A. I mean, if you aggregate the period where he was very sick and then the period where she was very sick, and the period where she was okay, and you divide it, it would probably average out to once a week.

Q. Okay. Well, let's talk about the time period after your father died and before your mother became very sick. How often would you visit during that period?

A. I'd say once every couple of weeks."

Jane also testified that "I was basically on call for whatever [my mother] needed. I did shopping for her, I looked at clothing that she wanted to buy. I spoke with my mother every single morning at 7 o'clock without fail unless I didn't have phone service":

"Q. How often would you say you wouldn't have service?

A. Well, if we had gone on vacation to some remote area is what I'm saying. But I remember being in a hotel in Ohio and sneaking out because everyone else was asleep to go outside and make sure I did the call at 7 o'clock in the morning."

Douglas, who lives in Madison, Mississippi, is a physician, and is currently "professor and chair of the department of anesthesiology" at the University of Mississippi. Douglas has been married twice: first in 1987, to Maureen Bacon, with whom he had four children [Charles, Andrew, Peter and Thomas]. Douglas and Maureen were divorced in 2009, and he married his [*4]present wife, Melissa,^[FN4] in 2010, and they have a daughter, Anna Margaret (born in December, 2010). Charles graduated from Canisius College in Buffalo, New York in 2011. Andrew is an officer in the U. S. Army; he graduated from St. John Fisher University in Rochester, New York, and lived with Jane and her family while he was an undergraduate.^[FN5] There is no background information about Thomas or Peter in this record, and Douglas' daughter Anna is now 11.

For all of Paul's and decedent's grandchildren, with two exceptions, Paul and decedent started "college funds" for each child at birth. That seemingly did not happen with respect to Adam Pedersen and Anna Margaret Bacon. The record also reveals a generous pattern of gift-giving by Paul and decedent — and by decedent alone after Paul's death — when each grandchild graduated from high school, apparently in the nature of money for each grandchild to buy a car.

As Douglas testified, in August, 2016, decedent gave his son Thomas $25,000 to buy a car when he graduated from high school:^[FN6]

"This was part of what my mother gave her grandchildren upon graduation from high school: a vehicle. I know she did it for Todd, Jena and Ross. I know she also did it for Charlie, Andy, Pete and Tom."^[FN7]

In 2010, decedent made a gift to her alma mater, Buffalo State College. She made an "irrevocable pledge of $180,000", payable as an annual gift of $9,000 to the Buffalo State College Foundation, Inc. "for the Dr. Margaret E. Bacon Best of Studio Award Fund".

Jane has indicated in an affidavit, dated December 9, 2017, that "[t]he only assets of [decedent's] estate are an annuity in the approximate amount of $187,000 and a medical reimbursement check in the amount of $535.20". The August 15, 2018 Inventory of Assets filed by temporary estate fiduciary Douglas indicates "total estate assets" of between $100,000 and $250,000.

As noted supra, and in the parties' moving papers, the following issues exist between Jane and Douglas:

(1) The Canterbury Woods deposit refund paid to Jane;

(2) Dental school tuition paid from decedent's funds for Jane's son, Todd, with a subsidiary issue of loans from decedent to Douglas allegedly exceeding $100,000;

(3) Decedent's Merrill Lynch accounts, including decedent's Loan Management Account [hereafter, the LMA], and decedent's joint bank account with Jane, and related credit card(s).

(4) Personal property of decedent's, including jewelry.

On a motion for summary judgment, the standards for review are well known and may be briefly stated:

"It is well established that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Thus, '[a] party moving for summary judgment must demonstrate that "the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment" in the moving party's favor' (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014], quoting CPLR 3212 [b]). 'This burden is a heavy one and on a motion for summary judgment, "facts must be viewed in the light most favorable to the non-moving party"' (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475, 982 NYS2d 813, 5 NE3d 976 [2013]), 'and every available inference must be drawn in the [non-moving party's] favor' (De Lourdes Torres v Jones, 26 NY3d 742, 763, 27 NYS3d 468, 47 NE3d 747 [2016]). If the moving party makes a prima facie showing, 'the burden then shifts to the non-moving party to "establish the existence of material issues of fact which require a trial of the action"' (Jacobsen, 22 NY3d at 833)" (Williams v. Beemiller, Inc., 159 AD3d 148, 152 [2018]; see also Omar v. Moore, 196 AD3d 1182, 1183 [2021]).

In this case, because both of the parties are seeking summary judgment, the analysis is less a rigorous back-and-forth review and more a global review of the entire record to determine whether there are any triable issues of material fact on any of the claims and/or counterclaims

I turn then to the specific areas of dispute between the parties.

When decedent and her husband moved to Canterbury Woods in 1997, they executed a Residency Agreement. Part of that Agreement provided that, upon termination of residency, a portion of the "entrance fee" would be refunded either to the resident or to the resident's estate.

By Addendum Agreement dated May 27, 2011 ^[FN8] , decedent and Canterbury Woods agreed [*5]that:

"any refund, including but not limited to, an entrance fee deposit refund, which may be due from Sponsor to Bacon shall hereinafter be the property of Bacon's daughter, JANE L. BACON PEDERSEN, and any such refund due from Sponsor shall be made payable to JANE L. BACON PEDERSEN, or her estate."

Douglas says that the Addendum Agreement is invalid, and that the $161,910 refund paid by Canterbury Woods to Jane following decedent's death ^[FN9] must be paid over by Jane to the estate.

For the reasons which briefly follow, I find that the Addendum Agreement was fully valid and binding, and that the payment of the refund amount by Canterbury Woods to Jane was proper and is her sole property.

The record of this estate contains a September 12, 2018 affidavit from Jane's husband, Mark, which indicates how the Addendum Agreement was signed. He attests that he and Jane were picking decedent up on May 27, 2011 from Canterbury Woods "to take her with us on a trip for a family event". While at decedent's apartment, Jane gave her mother the proposed Addendum Agreement, and, as Mark states:

"I personally observed the Decedent sign the Addendum and I then notarized her signature.

The Decedent advised Jane and I that she would take care of obtaining the signature of the appropriate individual from Canterbury Woods when she returned from the trip and that she would also ensure that Canterbury Woods received the fully executed document.

That was the last and only involvement I had with the Addendum."

Douglas has submitted a portion — denominated "relevant portions" — of the July 30, 2021 deposition of Jane's husband, Mark, on these motions. In pertinent part, that testimony is as follows with respect to decedent's execution of the Addendum Agreement:

" Q. Did your wife read this document to your mother [sic]?

A. Yes.

Q. Did your wife confirm in any way that your mother-in-law did not want your brother-in-law, Dr. Doug Bacon, to receive any portion of the Canterbury Woods refund?

MR. DICKENS: Object to the form of the question. You can answer.

THE WITNESS: She did ask her if she — my mother-in-law was sure she wanted to do this.

BY MS. BENNETT:

Q. When you say she wanted to do this, what does — what is this?

A. Sign this agreement which would change the beneficiary of the deposit at the Canterbury Woods from the estate to my wife.

Q. Okay. Did your mother-in-law confirm in any way that she intended Dr. Douglas Bacon to not receive any portion of the Canterbury Woods refund?

MR. DICKENS: Again, I object to the form of the question. You can answer.

THE WITNESS: She did not say in sum and substance I don't want Doug to have this money. But she did say he is more fortunate in his profession and his income and I want you to have this" (emphasis added).^[FN10]

Additionally, decedent's grandson Todd testified that, based on his conversations with her, his grandmother — decedent — was very appreciative of everything his mother — Jane — did for her:

"Q. And you also stated that your grandmother had an appreciation for what your mother had done for her.

What was it that your mother was doing for your grandmother?

A. Almost with the same frequency that I was, my mother was taking my grandmother to medical appointments. And my mother lived much further away. I was living in Buffalo at the time.

Q. Was there anything else that your mother was doing other than taking her to appointments?

A. My mother was, I believe, my grandmother's best friend. They spoke nearly daily at least. An hour each time. They were each other's sounding boards for matters of the heart. They were very good friends as well as mother and daughter. And my grandmother highly valued that relationship" (emphasis added).^[FN11]

Looking at the 2011 Addendum Agreement as a gift, it was executed by decedent — something which has never been challenged in any evidentiary manner — and her signature was notarized. It was also subsequently signed by a representative of Canterbury Woods.

The record proof is clear and unequivocal that decedent, up to the date of her death, was competent in all respects. As Douglas testified at his deposition, "I don't believe that she was not competent to make her own decisions ...She was competent" (emphasis added). Douglas' testimony about his mother's competency was echoed by his son, Charles (now age 33), who visited his grandmother regularly, at least for weekly dinners with her at the time in question and up to her death. Charles testified that decedent was always "rational", "one of the most intelligent people I have ever met", and "strong-willed".

The fact that, viewed as a gift, it was not to take effect until a time in the future is of no significance. See, e.g., Mirvish v. Mott, 18 NY3d 510 [2012].

And, there was clearly delivery to, and acceptance by, Jane, as she was present when her mother executed the Addendum Agreement and has testified that she was aware of what her mother was doing. See, e.g. Matter of Mahoney, 68 Misc 3d 1213 (A), 2020 NY Misc LEXIS 4447 [dec. Aug. 18, 2020] [delivery of a gift can be "either actual or constructive", quoting Mirvish v. Mott, supra, at 518, emphasis added, and either is sufficient].

Thus viewed as a gift, the Addendum Agreement is valid, and the payment to Jane by Canterbury Woods following decedent's death was completion of the gifting process.

Alternatively, the Addendum Agreement could be viewed as part of a third-party beneficiary contract (see Matter of Alvord, 99 Misc 2d 367 [1979]), amending the original Canterbury Woods Residence Agreement.

Third-party beneficiary contracts may be "performable at death", and, where they "provide for the disposition of property at death they need not conform to the requirements of the statute of wills" (Matter of Hillowitz, 22 NY2d 107, 110 [1968]). Although Douglas urges that the document fails because Canterbury Woods was not a party to it, the document was clearly signed by Dawn Wilkes, a representative of Canterbury Woods,^[FN12] although her signature was not notarized. Significantly, Canterbury Woods itself obviously believed the Addendum Agreement was valid and binding because it paid Jane the deposit refund pursuant to it. Robert Wallace, the CEO of Canterbury Woods,^[FN13] testified that residents can change the deposit-refund terms of the Residency Agreement and that the Residency Agreement signatures are not required to be notarized for the Agreement to be valid. I see no reason why the same non-notarization requirement of the underlying Residency Agreement would not apply with equal force to the Addendum Agreement (and Wallace concurred in that).

Wallace also made clear that the Canterbury Woods CFO, James Juliano, who authorized the refund payment to Jane, had determined that Wilkes' signature on behalf of Canterbury Woods was valid and acceptable.

To the extent that Douglas attempts to claim that the Addendum Agreement was the product of undue influence by Jane, I find such claim strikingly lacking in merit. As Douglas' son Charles testified (supra), decedent was highly "rational" and "strong-willed"; and Douglas himself testified his mother "was competent". See Matter of Kotsones, 37 NY3d 1154 [2022], aff'g 185 AD3d 1173 [2020]; see also, Matter of Walther, 6 NY2d 49, 53-54 [1959] and Matter of Nurse, 160 AD3d 745, 748 [2018] [evidence must establish that "influence exerted 'amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity could not be resisted, constrained [a person] to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist'" (quoting Matter of Walther, at 53). Here, there is not a scintilla of proof of undue influence, even [*6]colorably.

I find that the Addendum Agreement is valid, and that there is no triable issue of fact in that regard; and I therefore conclude that there is no basis to direct Jane to pay over the $161,910 to the estate.^[FN14]

The record establishes that, over the years, Douglas borrowed significant money from his mother:

"Q. What about following your father's death? Did you ever borrow any money from your mother?

A. During my divorce, my mother was very generous and I took a $100,000 loan from my mother to cover some of my expenses.

Q. Approximately, when was that?

A. That would have been somewhere around 2007, 2008.

Q. The total was $100,000?

A. That I recall, yes.

Q. Could it have been more?

A. No. I don't believe so.

Q. Did you sign a promissory note?

A. No. That was up to my sister who was managing her affairs. And no promissory note was brought to me to sign. I would have happily done so" (emphasis added).

As Douglas put it, "I remember my mother giving me a stern lecture about money management at that time, and then agreeing to help me."

With respect to Todd Pederson, Jane's son, decedent agreed to help pay his dental school expenses.

At some point, decedent had a conversation with Douglas about that:

"Q. Did you have any discussions with your sister or her husband, Mark, regarding loan forgiveness in exchange for your mother paying for their son Todd's dental education?

A. Yes, sir.

Q. Can you tell me who you spoke with, and what was said in sum and substance?

A. I actually never spoke directly with my sister. To the best of my recollection, I spoke with my mother about it.

Q. And —

A. And in sum and substance, it was that, as the — my understanding of the assets that my mother had that would be in her — would be transferred to my sister and me upon her death, that if she could help Jane and Mark with tuition for Todd in dental school, that would balance off what she had given me. And so therefore, I was more than willing — if mother wanted to do that, I was very comfortable with that, so it proceeded" (emphasis added).

The record also contains an affidavit from Jane's son Todd Pederson:

"In or about 2011 and 2012, my cousin, Charles Bacon, Petitioner's son, and I would regularly meet our grandmother for dinner.

On more than one occasion during those dinners, my grandmother discussed with us the fact that she was providing my mother sufficient funds to finance my dental school expenses and that she was conversely forgiving amounts that she had loaned to Petitioner.

I was extremely grateful for her generosity and often discussed with my grandmother subsequently my experiences in dental school and my thankfulness for her provision of the funds for my education" (emphasis added).

I find, from the evidence presented, that decedent gifted the funds to pay for Todd's dental school education, and that Douglas' claim seeking repayment to the estate of those monies is without merit. And, given the circumstances in which decedent made that gift for Todd's education — namely, in exchange for forgiving Douglas' obligation to repay $100,000 in loans made to him by decedent, which Douglas acknowledged at his deposition — Douglas' claim in regard to the tuition paid for Todd is without merit.

Similarly without merit on the proof before me is Jane's "counterclaim" against Douglas for repayment to the estate of loans made to him by decedent, which were forgiven in exchange for decedent's payment of Todd's dental school tuition.^[FN15]

Douglas' petition raises questions with respect to two Merrill Lynch accounts, the "1776 account" and the "5790 account" (otherwise referred to as the "Loan Management Account" or "LMA").

With respect to the 1776 account, I find that, without the need to parse each item raised by Douglas, all disbursements were proper and have been properly accounted for by Jane.

With respect to the LMA, Jane has explained that it was akin to "a home equity line of credit [i]t was a mortgage in a sense for which her account was pledged. So it was never [my mother's] money, it was Merrill Lynch's money." Jane has also testified, without evidentiary contradiction, that "[n]othing was done without [my mother] knowing about it and approving it." And, finally, to the extent relevant, and again without evidentiary contradiction, Jane testified that "[e]verything was repaid when the [LMA] was closed."

I conclude that there was nothing amiss or improper about the handling of the Merrill Lynch accounts, that there are no triable issues of fact in that regard, and that Douglas' claims with regard to those accounts are without merit.

Finally, with respect to all other financial matters raised by Douglas relating to Jane's handling of decedent's financial affairs during decedent's lifetime, including credit card use, I find that all such claims have been satisfactorily explained by Jane, that there was absolutely no impropriety involved, and that there is no evidentiary basis which calls any of that proof into question such that a trial would be required.

Accordingly, I conclude that Jane is entitled to accelerated judgment dismissing all of Douglas' claims regarding decedent's accounts.

With respect to personal property issues, significant objective evidence in this record came from Douglas' son Charles. Stripped to essentials, Charles testified that, after decedent died, all family members — both from his father's side and from Jane's side — were together in late November, 2016, at decedent's Canterbury Woods apartment:

"Q. When you say — was there a family meeting where all the family came together and selected those items of personal property that they wanted?

A. We came together to load up the U-Haul. At which point while we were packing up the house, we said, "Hey, I would like to keep this," or "any objections," that sort of thing.

Q. And who was present? When you say "we," who was present during that disposition of the personal property?

A. My father, Melissa, Jane, my Uncle Mark, my cousins and my brothers and my sister Ana.

Q. Would it be fair to say that your father took the bulk of personal property from your grandmother's apartment?

A. Yes.

Q. Was there any dispute at the time the personal property was [distributed] as to who should receive what personal property?

A. I don't remember any — I don't remember anything beyond a brief discussion. I was deeply grieving at the time. I couldn't tell you. Also, my wife, Kiera, was there.

* * *

Q. Do you recall whether any of your cousins received any personal property after your grandmother's death?

A. Yes. We all took something home I believe.

If I remember correctly, my cousin Jenna got one of her rings. That was particularly contentious.

I don't recall specifically anything else that was particularly major. My brother Andy got her stamp collection. Beyond that, I don't remember the details of who got what.

Q. Do you recall whether your Aunt Jane wanted any of the personal property?

A. The ring and individual items were discussed as they came up. I don't remember anything particularly of consequence" (emphasis added).

Douglas has testified that, when his mother died, he wanted two specific items of her personal property:

"One was the pre-Revolutionary War grandfather clock. The other was a ring of my grandmother's that was originally a diamond dinner ring."

Douglas received both of those specific items he wanted, and he acknowledges taking her sterling silver flatware, as well as receiving her "gold charm bracelet" and "the things from [her] silver charm bracelet". He also has all "the personal family mementos".

Now, Douglas raises issues about his mother's costume jewelry, "some Victorian pieces that were of value", "several diamond rings from my grandmother", and "several strings of real pearls". Douglas acknowledges that he has a string of the pearls he refers to.

Douglas testified that Jane has his mother's costume jewelry, but he is uncertain what else exists because there has been no inventory made of the items. And, although he objects to the fact that Jane took decedent's engagement ring and passed it on to her — Jane's — daughter remade as a pendant when Jena was married, Douglas says "we cannot undo what has been done", noting that "there are other people, other children who might have enjoyed having that, including my daughter" (emphasis added).^[FN16]

Finally, there is the issue of decedent's stamp collection, which Douglas has but half of which he says belongs to Jane.

Douglas has an "appraisal" of the stamp collection, and he "believe[s] it appraised at $600". However, Douglas testified he would decline payment to him by Jane of $300 for his half of the collection: "we need to talk. We can always negotiate things".

Douglas has testified that he now wants an inventory of all jewelry that was owned by decedent, and an appraisal made thereafter of each item, with "an honest and open discussion about who would desire what and what the value of those things are after that appraisal to divvy the estate equally". Douglas has stated that an inventory and appraisal could include decedent's stamp collection, but that it would not include the other contents of decedent's apartment — most (but not all) of which he took — because "[a]t this point, practicality would suggest that that would be a waste of everybody's time." Jane's counterclaim against Douglas is for return for all personal property he took of decedent's, including her jewelry and stamp collection.

Douglas' argument that the personal property of decedent's which is in his possession is there solely because he is the temporary fiduciary who has an obligation to gather all decedent's assets (see Douglas' February 26, 2021 affidavit, at pgh 15 ["Respondent appears to miss the point of an estate proceeding. I am the appointed executor of Decedent's estate. As such, I am supposed to be in possession of Decedent's assets. In fact, that is the entire point of this proceeding, to collect Decedent's assets in the possession of Respondent so that I can distribute those assets in accordance with Decedent's will"]). This argument is both misleading and meritless inasmuch as Douglas took the personal property to Mississippi a year before he became temporary administrator.

Douglas' further argument that, although he accepted certain pieces of his mother's [*7]jewelry from Jane, he did so only in a fiduciary capacity, verges on the incredulous for the same reason dealing with the household items he took to Mississippi. And, finally, his claim that he never agreed to take his mother's pearls for his daughter Anna in exchange for the ring that went to Jane is belied by his deposition testimony.

It is worth noting exactly what decedent's Will — which has now been admitted to probate — provides with respect to the disposition of decedent's tangible personal property:

"If my said husband does not survive me, then I direct that each of my surviving children shall select such of the foregoing articles as he or she may wish to retain, and I hereby give and bequeath to each child the articles so selected. If, at the time of such selection, any of my children is a minor or, in the sole judgment of my Executor, is incapable of making a prudent selection, I authorize my Executor to make a selection on behalf of such child or to elect to sell any or all articles of personal property. If my children are unable to agree as to the recipient of any article or if they predecease me, I authorize and direct my Executor to distribute any and all articles of personal property or elect to sell them and have the proceeds added to my residuary estate. Any article not selected, distributed or required to be sold, may be sold at public or private sale, and the proceeds shall be added to my residuary estate. In exercising his discretion under this Article, my Executor's decision shall be binding and conclusive on all persons" (emphasis added).

Here, Jane was the nominated executor under decedent's Will. Had probate occurred immediately after decedent's death, she would have had full authority to dispose of the tangible personal property as she best saw fit. Douglas, as temporary fiduciary, has no authority to distribute or to dispose of that property, and the issue of who, as between Jane or Douglas (or some third party), shall receive full letters remains to be adjudicated.

I note again that the parties have failed to resolve their disputed issues at mediation. Something more than an inventory and valuation of all estate personal property assets, with further on-going discussions about how to "divide everything", appears to be required in this case after more than five years of failed discussions and litigation between these two parties. While the prospect of their agreement may unfortunately not be bright,^[FN17] inasmuch as all issues except personal property issues have now been decided by me I believe that the parties should be given one final, brief opportunity to settle their differences without further litigation. Failing such settlement, the outstanding issues, including who will receive full letters will be back [*8]before me.^[FN18]

If the parties believe that an asset inventory and appraisal of all such assets is necessary, that inventory and appraisal must include each and every item of decedent's personalty. Neither Douglas nor Jane are free to pick and choose what should be selectively included in an inventory and subsequent appraisal: an inventory and appraisal, in the posture of this case, is an all or nothing proposition, and must also — so this is clear — include anything which any of decedent's grandchildren were given.

Accordingly, I direct that the parties and their attorneys shall have until Friday, August 5, 2022, at 5:00 p.m., to file with this Court, if they are able to do so, a final comprehensive settlement agreement with respect to all personal property items, executed by both parties, and an agreement to close out this estate.

Should the parties fail to reach and file a comprehensive settlement agreement by August 5, 2022, I will thereafter determine what steps will be necessary to bring this estate to conclusion; and as to such remaining matters, decision continues to be reserved.

This decision shall constitute the Order of this Court and no other or further order shall be required.