Joan Dorothy Beebe (hereinafter the "Decedent") died a resident of Saratoga County on November 23, 2021 at the age of eighty-eight (88) years of age. The decedent had four (4) children who are her distributees herein, Ralph Beebe, Jr., Lorna Beebe Oberlander, Susan Beebe and David J. Beebe. Letters of Administration were issued to decedent's youngest son, David J. Beebe on February 15, 2022, without objection.

On May 8, 2023, the Administrator filed a Second Amended Petition for Judicial Settlement of his Account along with an Amended Accounting. Thereafter, on September 28, 2023, an examination of the Administrator was held pursuant to SCPA §2211. Following the examination, on December 1, 2023 Objections to the Amended Account were filed by distributees Lorna Beebe Oberlander and Ralph Beebe, Jr. (hereinafter "Objectants"). By motion filed on December 15, 2023, the Administrator moved for an Order: dismissing the Objections, approving the Amended Account as submitted, directing the sale of certain precious metal of the decedent, directing payment of certain estate indebtedness and obligations, directing payment of the Administrator's commission, and direction to distribute the net proceeds to the distributees.

Objectants' two primary objections to the Amended Account concern ownership of certain precious metals, coins and bullion (hereinafter "bullion") and the attorney's fees sought to be chargeable to the Estate. The matter now comes before this Court for decision to settle the Amended Account.

Prior to her death, it appears that the decedent resided on Circular Street in Saratoga Springs. The Administrator resides at 3 Thunderbird Drive, Ballston Lake, New York, having so resided on and off since he was born. 3 Thunderbird Drive was the family home and the decedent resided there until approximately 2011. Ralph Beebe, Jr. also resided at the house from 2006 to 2015 and was aware of the existence of the bullion. The testimony at the examination was that the home was in trust pursuant to a grant from the decedent-grantor from approximately 2006 to 2017 with Lorna Beebe Oberlander being the trustee. Although not explored by counsel during the §2211 examination, it appears from the Court's own records in this matter that the original trust took ownership of the home on December 6, 1996. Subsequently, on November 9, 2017, the trust was modified by the decedent-grantor wherein she removed Lorna Beebe Oberlander as trustee and substituted David J. Beebe as trustee. She also modified the trust to permit the home to be transferred to the Administrator for the sum of $200,000.00 with that sum being equally distributed to the decedent's four children.

Based on the testimony elicited at the examination, from October 2006 until July 2015, the Administrator and the decedent were involved in the purchase of bullion. The Administrator testified that after the decedent's death, he found receipts for bullion at her home and that he also had receipts at his home, but he could not identify which receipts came from which home, but that all receipts were produced to his attorney.

Six invoices for bullion from two merchants (Ferris and Schiff) were introduced into evidence at the hearing (Exhibit "A"). The Administrator's name appears on three of the invoices in some fashion or other and the decedent's appears on all six. On an October 16, 2006 Ferris invoice, both the Administrator's and decedent's names appear on the "sold to" line the invoice reflects that eight (8) coins were purchased. The Court is unclear from the record as to what particular coins are encompassed on this invoice, and no inquiry was made regarding the same. The January 28, 2008 Ferris invoice shows a total of six (6) gold ("Au") coins, only the decedent's name appears. The June 20, 2008 Ferris invoice shows one hundred twenty-three (123) coins. The Court is unclear from the record as to what particular coins are encompassed on this invoice, and no inquiry was made regarding the same. The two (2) Schiff invoices constituted thirty (30) 1 oz Gold Eagles ordered on July 9, 2015 and four hundred twenty-six (426) Silver Eagles ordered on December 17, 2014. The customer listed on both of the invoices is the decedent. However, the shipping address lists both the decedent and the Administrator with the address being 3 Thunderbird Drive.

The Administrator testified that both of the Schiff invoices were purchases that were made telephonically, and that the four (4) Ferris purchases were done in person with both himself and the decedent present. The testimony was that the Administrator did not know of any time where the decedent made a bullion purchase without his involvement.

The Administrator testified that the joint purchases to Schiff that were made on the decedent's credit card would be repaid by him to her shortly thereafter. He further testified that the thirty (30) Gold Eagles listed on the July 9, 2015 Schiff invoice were definitely the decedent's as he did not buy gold at that point in his life, only silver. As to the Ferris invoices, on cross-examination, the Administrator was able to identify some of the items as being his predominately due to the fact that the identified items were silver.

For the subject Ferris transactions, after the bullion was purchased, the Administrator and the decedent, together or separate, would go to the store and take possession of it. The bullion would then be brought to 3 Thunderbird Drive (now the Administrator's home) and were placed [*2]in the Administrator's safe to which the decedent had access and the combination. For the Schiff purchases, these were shipped directly by the merchant to 3 Thunderbird Drive. The Schiff bullion remains at the safe at Thunderbird drive in its original form. The Administrator testified that some of the Schiff bullion was his. No inquiry was made as to what particular items it was that he claimed. On the inventory of estate bullion prepared by the Administrator (admitted into evidence as Exhibit "B") thirty (30) Gold Eagles are listed, as well as two hundred twenty-nine (229) Silver Eagle Coins. The Administrator testified that he prepared this list as an accounting of what all coins belonged to the decedent that were contained in the safe in his house and placed in separate compartments, one for him and one for decedent, which were never intermingled.

The Administrator also testified that there was additional bullion purchased during this period, but he could not recall what items and has no records regarding the same. The Administrator claims that the two hundred fifty-nine (259) item discrepancy between the six (6) receipts in evidence and the total number of coins appraised is due to the fact that those 259 items were his at the time of the joint purchase with the decedent. Subsequently, the Administrator testified that some of the items purchased as far back as 2006 may have been sold and or exchanged by him for other bullion. It is not clear from the questioning as to whether these items were exchanged before or after the decedent's death or how many items of bullion now remain that the Administrator claims are his personal property.

Objectants take issue with the Administrator's lack of record keeping and memory of events. The Administrator self-admits several times at the hearing to essentially not being a good record keeper, to not having a great memory, and freely states that he is "not known to be very smart". In addition, he testified that he did not utilize paper records to determine which items of bullion belonged to him and which belonged to the decedent. He simply placed the bullion in separate compartments in the safe, which he never intermingled.

The Court finds that the overall testimony of the Administrator to be consistent and credible. The Administrator did not use paper records to track the ownership of the bullion, rather he used a simplistic, but effective method of separating the items by placing them in separate locations in the safe. It should be noted that it is uncontested that the safe at all times belonged to the Administrator, that the decedent never removed her bullion from the safe when she moved from the 3 Thunderbird Drive home, nor did she do so when ownership of that home was transferred from the trust to the Administrator. This was all despite her having access to the safe and its contents, presumably up until the date of her death.

The Administrator cannot be forced to prove a negative, and the same accusations as to his lack of record keeping could also be said as to the decedent, whom it does not appear kept records of which bullion was hers, either relying upon the separate compartment method or the honesty of her son and trustee.

According to the appraisal of the bullion performed by William Panitch and admitted into evidence as Exhibit "C", the three hundred thirty-eight (338) pieces of bullion had a date of death value of $88,891.45. This value lends enormous credibility to the testimony of the Administrator, who, without prompting voluntarily included this large amount of precious metal into the assets of the Estate. Being that bullion is a form of personal property without title and is convertible by the bearer to cash there is a presumption of ownership by virtue of the Administrator's possession of the same. Such assets are presumed to be the property of the possessor in absence of proof to the contrary. See, generally, 73 C.J.S. Property §69, citing Errico v. Westchester County, 39 Misc 2d 1090 (County Ct. 1963). The Administrator could [*3]well have taken the position that the entirety of the bullion located within his safe at his house was his entirely, via purchase, gift, or otherwise, but he did not do so. One does not have to have perfect records or a high level of intelligence to be honest in their dealings. The fact that the Administrator has undertaken the efforts he has in disclosing the valuable bullion, organizing it and seeking its appraisal rather than attempting to hide it from the distributees, speaks volumes to his honesty and credibility.

The fiduciary has the burden of proving that he has fully accounted for an estate's assets and that the accounting is complete and accurate, see Matter of Schnare, 191 AD2d 859 (3rd Dep't. 1993). Although this burden remains on the fiduciary, his account and submitted affidavits make a prima facia case, whereafter, the objectant must come forth with evidence that the account is inaccurate or incomplete, see, Matter of Rudin, 34 AD3d 371 (1st Dep't. 2006) and Matter of Curtis, 16 AD3d 725 (3rd Dep't. 2005). The Court determines that the Objectants have not met their burden of establishing that the account is inaccurate in that they have failed to overcome the presumption of possession and prove the bullion at issue (Administrator's claimed personal bullion) was in fact the sole property of the decedent and thus an estate asset. Instead, the weight of the evidence adduced at the examination shows that the Administrator has fully and faithfully disclosed all of the assets of the Estate and further that whatever bullion the Administrator has not included in the accounting is his own separate property per his testimony.

The Court now turns to what numerical number of pieces of bullion are included in the Estate and which should properly be listed in the accounting. The Surrogate is vested with the authority to inquire into the propriety and accuracy of a fiduciary's account under its general jurisdiction conferred by SCPA §201(3) and the Constitution, see Stortecky v. Mazzone, 85 NY2d 518 (1995). The Constitution grants Surrogate's Court jurisdiction over "all actions and proceedings relating to the affairs of decedents, probate of wills [and] administration of estates" see, NY Const, art VI, § 12(d) and authorizes the court to exercise such equity jurisdiction as provided by law in fulfilling those responsibilities, see, NY Const, art VI, § 12 (e); see also, SCPA §201. As such, the Surrogate is empowered to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents. Notably, the statute provides that the ultimate settlement of an account, whether compelled or voluntary, is to be accomplished by the Surrogate and that the court shall "make such order or decree as justice shall require" SCPA §§2206 (3) and 2211(1).

On the face of the exhibits as presented by counsel there does exist a discrepancy between the Administrator's inventory (Exhibit "B") and the appraisal (Exhibit "C"). This difference is six (6) items of bullion. As the specifics of this discrepancy were not delved into greatly at the examination of the witness, nor in the papers presented on the motion, it falls to the Court to decipher.

Comparing Exhibits "C" and "B" reveals that three (3) items listed on the appraisal "C" were not on the inventory "B". These include:

-a Platinum US American Eagle, 2008, 1 ounce valued at $1,098.00;

-a Gold U.S. $20 1896-S, AU 58 valued at $1,800.00; and

-a Gold U.S. Buffalo 1 oz. 2006 valued at $1,825.00.

These pieces total $4,723.00 in value and must be added into the total of Exhibit "B" to increase its number of coins to three hundred forty-seven (347). But the numerical discrepancies [*4]do not end there. Mr. Pechenik points out in his moving Attorney Affidavit at paragraph "23" that there is a discrepancy in the calculation of the number of 90% silver quarters listed in the appraisal vis-à-vis the inventory and argues that the true number of quarters is sixty-four (64). Likewise, it is clear that in his questioning Mr. Breault assumed that the $18.00 listed in the appraisal was a typographical error and should have been listed as eighteen (18) coins giving him the three hundred thirty-eight (338) number used to question the Administrator (18 x $19.50 = $351.00 as shown in the appraisal). Although the witness did not, the Court does find quarrel with Mr. Breault's math and also determines that Mr. Pechenik while being logically correct reaches the wrong conclusion with the wrong math. The Court takes judicial notice that a quarter has always constituted 25% of a Dollar or .25 Cents. Thus, quarters representing $18.00 face value equates to seventy-two (72) coins, not sixty-four (64) as asserted by Mr. Pechenik or the eighteen (18) coins apparently assumed and calculated by Mr. Breault. As such 347 + 72 = 419 and then one must subtract out the 27 originally listed, which results in three hundred ninety-two (392) coins which should properly be in the Estate inventory ^[FN1] Likewise, when reviewing and correcting the appraisal, and using the sum of seventy-two (72) quarters instead of eighteen (18), the number of coins appraised becomes three hundred ninety-two (392) and the documents are presumed to match. The Court also presumes that the appraiser committed error in that he calculated the value of said quarters using the eighteen (18) number rather than the seventy-two (72) number, thus the total appraised value of the coins must be increased to $1,053.00 ^[FN2] for a total appraised value of $89,944.45.

Objectants also generally object to the attorney fees claimed by Mr. Pechenik in twenty-one (21)^[FN3] of his block-billed time entries without specifically enumerating the amount of time objected to. These block-billed entries total to 23.3 hours. At Mr. Pechenik's $225.00 per hour billing rate this equates to a sum of $5,242.50 objected to.

The Surrogate's Court bears the ultimate responsibility of deciding what constitutes reasonable legal compensation, and this determination rests within the sound discretion of the Surrogate's Court, see Matter of Rose BB., 35 AD3d 1044, 1045-1046 (3d Dep't. 2006) [internal quotation marks and citation omitted]; see also Matter of Massey, 73 AD3d 1179, 1179-1180 (2d Dep't. 2010). This is so regardless of the existence of a retainer agreement or whether the other parties have consented to the amount of fees requested [see Matter of Phelan, 173 AD2d 621, 621 (2d Dep't. 1991); see also Matter of Rose BB., 35 AD3d at 1046; Matter of Cook, 41 AD2d 907, 907 (1st Dep't. 1973), affd 33 NY2d 919 (1973)].

"No hard and fast rule exists by which it can be determined what is reasonable compensation for an attorney in any given case," see, Matter of Stellis, 216 AD2d 473, 474 (2d [*5]Dep't. 1995). Relevant factors to consider in determining an appropriate fee award include, among other things, "the time required, the difficulties involved, the nature of the services provided, the amount involved, the professional standing and ability of counsel, and the results obtained," see, Matter of Drossos, 26 AD3d 602, 603 (3d Dep't. 2006); see Matter of Freeman, 34 NY2d 1, 9 (1974); Matter of Potts, 213 App Div 59, 62 (4th Dep't. 1925), affd 241 NY 593 [1925]; see also Pekofsky v Estate of Cohen, 259 AD2d 702, 702-703 (2d Dep't. 1999).

The proponent seeking a fee award bears the burden of proving that the services and fees were necessary, fair, and reasonable. Matter of Passuello, 184 AD2d 108, 111 (3d Dep't. 1992). Further, an attorney may not recover legal fees from an estate for duties performed which are executorial, clerical, and/or ministerial in nature (e.g., those capable of being performed by a layperson) see e.g. Matter of Passuello, 184 AD2d at 109-112; Matter of Phelan, 173 AD2d at 622-623; Matter of Jones, 168 AD2d 448, 449 (2d Dep't. 1990); Matter of Lester, 172 App Div 509, 518-519 (3d Dep't. 1916); Matter of Efstathiou, 41 Misc 3d 1219[A] (Sur Ct, Nassau County 2013).

The Court finds these objections to be largely without merit. Mr. Pechenik is a long-admitted attorney in good standing in Rensselaer County. He has voluntarily corrected and credited the inadvertent duplicate time entries on the invoices submitted when brought to his attention. He has proactively not billed the estate for work necessary to correct filings. The hourly rate charged for the services rendered is more than fair and reasonable in comparison to other hourly rates for attorneys of equal experience and skill within the Capital District and more specifically, Saratoga County. This estate has involved not only the administration proceeding, but also dealing with a pour-over will to an unfunded trust, a contested accounting and all of the issues which surrounded the somewhat unusual bullion assets and his dealings with multiple attorneys retained by the Objectants.

Furthermore, as Mr. Pechenik's billings are block-billed in nature, i.e. where an entry may contain multiple items of work performed for a total amount of time expended, it is impossible to ascertain which portion of what entry should be allocated to what time. Some of the entries may arguably be items which were clerical or non-legal work in nature, however, the Court finds that any such entries are well offset by the fact that Mr. Pechenik is not seeking attorney fees past April of 2023 and did not bill for the time expended on the §2211 hearing or the filing of the final account and submissions on the motion pending in this matter.

Based upon the foregoing and a review of the invoices submitted, the Court approves the legal fees and disbursements sought by Mr. Pechenik subject to there being no further charges to the estate to submit the Decree and wind up the affairs of the Estate. It is therefore,

ORDERED, ADJUDGED, AND DECREED based upon all of the foregoing, the Court hereby dismisses the Objections; and it is further

ORDERED, ADJUDGED, AND DECREED that the account and the schedules are deemed amended to reflect the determinations set forth in this decision. The account is hereby deemed settled and resolved for all other issues; and it is further

ORDERED, ADJUDGED, AND DECREED that the Administrator is awarded commissions in the amount of $5,400.44; and it is further

ORDERED, ADJUDGED, AND DECREED that the Administrator and his counsel are awarded the sum of $21,375.00 in legal fees for services performed, plus the sum of $723.89 for disbursements, of which $7,500.00 has been paid leaving the sum due and owing of $14,598.89; and it is further

ORDERED, ADJUDGED, AND DECREED that the precious metal be liquidated within thirty (30) days of the date of this Decision and Order and the proceeds thereof be deposited into the Estate account; and it is further

ORDERED, ADJUDGED, AND DECREED that following the liquidation of the precious metal, Attorney Pechenik shall submit a final Decree which shall direct the payment of indebtedness and obligations, the payment of the commissions and attorney's fees set forth in this Order, and contain the direction to distribute the net proceeds therefrom and of the estate to the distributees. Attorney Pechenik shall also file a receipt showing the liquidation value realized of the precious metal.