Matter of Mack

Surrogate's Court, Erie County

Decided on April 3, 2026

File No. 2023-2415/A

Acea M. Mosey, S.

Decedent Vernon LeRoy Mack, Sr., [hereafter, Vernon or decedent] died intestate on December 25, 2022, at 67 years of age in Buffalo, New York. At the time of his death, decedent had never been married and had seven (7) alleged non-marital children: Amina A. Mack [hereafter, Amina], De'Von C. Johnson [hereafter, De'Von], Vernon L. Mack, II [hereafter, Vernon II], Xavier Sellers [hereafter, Xavier], Marquita D. Mack [hereafter, Marquita], Joshua Mack [hereafter, Joshua], and Felicia (who predeceased decedent as an infant).

An administration petition was filed on May 31, 2023, by Marquita and Vernon II seeking letters of administration. Marquita and Vernon II's petition identified decedent's six non-marital children as his only issue. On April 25, 2024, letters of administration with limitations were issued to Marquita and Vernon II.FN1 The limitations on the letters required a kinship determination before distribution of the net estate.

Pending now before me is a petition for advice and direction requesting that this Court determine decedent's heirs and close the class of distributees. A citation was issued to Amina, De'Von, Xavier, Joshua, and unknown heirs. Ellen G. Spencer, Esq., [hereafter, GAL Spencer] was appointed guardian ad litem for possible unknown heirs.

A kinship hearing was held on November 21, 2024. Thereafter, this Court issued a Memorandum and Order on June 30, 2025 [the 2025 Decision], finding the following: (1) that decedent was never married; (2) that decedent had seven biological children: Felicia, Xavier, Marquita, Vernon II, Amina, De'Von and Joshua, and that Felicia predeceased decedent as an infant; (3) that Marquita, Vernon II, and Amina were established by orders of filiation as decedent's children, and that De'Von and Joshua were established by open and notorious acknowledgement as decedent's children; and (4) that while decedent openly and notoriously acknowledged Xavier as his son, the documentary evidence and testimony showed that Xavier was adopted out. However, it was unclear who Xavier's adoptive parent(s) were and whether they were within the class of relations enumerated in DRL 117(e) which would entitle Xavier to inherit from decedent notwithstanding the adoption. Also, while jurisdiction over Xavier had been obtained, it was unclear whether Xavier had been provided adequate notice of the kinship hearing.

The proof regarding Xavier's status was kept open, and a continuation of the kinship hearing was held on October 28, 2025, before a Court Attorney-Referee appointed by me on a hear and report basis. All parties waived the filing of a written report and recommendation, permitting me to decide the issues based upon the testimony and documents produced at the hearing and stipulated into evidence (see SCPA 506[6][c]).

GAL Spencer submitted her amended report and recommendation, which I have considered with the hearing testimony and the documentary evidence. I now find and decide as follows.

(I)

Under EPTL 4-1.2, the right of non-marital children to inherit from their birth fathers depends on proof of paternity by one of four methods: (1) an order of filiation by a court of competent jurisdiction during the lifetime of the father; (2) an acknowledgement of paternity executed by the parents of the child pursuant to Public Health Law §4135-b and filed in the district in which the birth certificate is filed; (3) a signed instrument, acknowledging paternity by the father in a manner required to record a deed; or (4) by clear and convincing evidence, which may include but is not limited to evidence derived from a genetic marker test, or evidence that the father openly and notoriously acknowledged the child as his own.

In cases where there is a non-marital child, issues concerning kinship generally and class-closing arise. A claimant has the burden of proving kinship (see, e.g., Matter of Flavin, 15 Misc 3d 1104[A] [2007]), and he or she must establish that he or she is the decedent's closest blood relative, as defined in EPTL 4-1.1 (see Matter of Dinzey, NYLJ, June 9, 2003, at 33, col 4). This burden is met by a preponderance of the credible evidence (see Matter of Paul, 2017 NY Misc LEXIS 674, 2017 NY Slip Op 30355 [U] [2017]; see also Matter of Whelan, 93 AD2d 891 [1983]). For kinship to be established to the satisfaction of the Court, a claimant must make an evidentiary showing (1) how he or she is related to the decedent, and (2) that no other persons of the same or a nearer degree of relationship survived the decedent. Upon proof that no heirs other [*2]than those before the Court exist, the class of heirs may be "closed" (see, e.g., Matter of Alao, NYLJ, March 19, 2002, at 20, col 5).

The nature of the proof required in kinship proceedings is stringent and has become well-established over the years (2 Harris 6th, NY Estates: Probate Administration & Litigation § 27:7). "Evidence of pedigree takes the form of oral testimony, preferably by a disinterested person such as a professional genealogist, with documentary evidence required to corroborate it" (Matter of Kuberka, 22 Misc 3d 1104[A] [2008], citing 6 Warren's Heaton, Surrogate's Court Practice § 74.17[2][b][iii] at 74-57 [7th ed.] and Matter of Logue, NYLJ, June 19, 1998, at 30, col 3; see also, Matter of Gavin, 41 Misc 3d 232, 235 [2013]). "Claimants who fail to offer evidence to exclude the existence of persons who would have an equal right to share in the estate fail to establish their rights as distributees (Matter of Haaser, 187 Misc 368 [Sur. Ct., Bronx County 1946])" (Matter of Darienzo, NYLJ, July 23, 2010, at 36, col 5).

(II)

Xavier was the sole witness to testify on the continuation hearing date. Xavier testified that his biological parents are Sandra Jemison and decedent, despite a birth certificate listing Harold Jemison as his father. He stated he was fostered and then adopted as an infant by Ethel Sellers, a person unrelated to Xavier or to his biological parents. Xavier acknowledged that his testimony would affect whether he would be entitled to inherit from decedent.

Xavier's testimony, against his interests, filled in the gaps highlighted in my 2025 Decision. Based on his testimony, and the documentary evidence including several birth certificates, I find that Xavier is a biological child of decedent, that he was adopted out to Ethel Sellers, and that Ethel Sellers is not of a class of persons enumerated in DRL 117(e). Therefore, Xavier is not entitled to inherit from decedent.

Now that Xavier's status has been determined, the class of children is closed. As set forth in my 2025 Decision, decedent's sister Roslyn Lynette McLin, decedent's cousin Sharinon Thompson, and Robin Lynn Johnson, mother of De'Von, all testified that decedent had no other children than those previously established and they would have known about it if he had any additional children.

(III)

After the conclusion of the kinship hearing, GAL Spencer submitted her amended report, recommending that I find that decedent was not married at the time of his death and that he was survived by five children: Marquita, Vernon II, Amina, De'Von, and Joshua.

Based upon the totality of the evidence before me, I concur with the recommendation of GAL Spencer. I find that decedent was not married at the time of his death; that he was survived by five children who are his distributees: Marquita, Vernon II, Amina, De'Von, and Joshua; that the child Felicia predeceased the decedent leaving no issue; that the child Xavier was adopted out and is not entitled to inherit from decedent pursuant to DRL 117; and that the classes of spouse and issue are closed.

In my 2025 Decision, I approved fees to GAL Spencer in the amount of $990.00. GAL Spencer has waived fees for her work subsequent to the 2025 Decision and shall be entitled to receive CLE credits for her time expended.

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

DATED: April 3, 2026

BUFFALO, NEW YORK

Hon. Acea M. Mosey

Erie County Surrogate Court Judge