Opinion
File No. 2017-5257/C
01-08-2024
In the MATTER OF the ESTATE OF Edwin SZCZESNIAK, Deceased.
Edwin Szczesniak [hereafter, decedent] died intestate at age 93 on November 14, 2017, leaving an estate worth approximately $190,000. Decedent's death certificate indicates that he had been the owner of a bar and restaurant — the Nite Cappe — in Lackawanna, New York.
Decedent's nearest living relatives, according to the claims made, are a paternal first cousin — Jozefa [Szczesniak] Kolarz -- and several maternal first cousins once-removed — Joel Bolden, Gary Bolden, Linda Worthington, Steven Lezan, Mark Lezan, Thomas Mellody, Jr., and Marsha Dubel. Because decedent had no known closer heirs, Letters of Administration were issued to the Erie County Public Administrator on April 5, 2018 (see SCPA 1001[1][f][ii] ), and, in this subsequent accounting proceeding, a Guardian ad Litem [hereafter, the GAL] was appointed for unknown heirs.
On consent of the parties, a kinship hearing was held before a Court Attorney-Referee. The parties also waived a written referee report and consented that this Court could decide the issues based upon the hearing transcript and documentary evidence (see SCPA 506[6][c] ). After one day of testimony, the hearing was adjourned, but resumed several months later with further testimony. The GAL has filed her report and recommendation, and responses to that report have been received from counsel for the maternal claimants and for the paternal claimant.
The matter having been finally submitted, I now find and decide as follows.
I.
"In all cases involving pedigree and the distribution of intestate property, it is first necessary to establish the identity of the common ancestor and from that point to construct the true family tree, to which all claimants must attach themselves to be successful" (Matter of Whalen , 146 Misc 176, 180 [1932], emphasis added; see also , Matter of Lelito , 20 Misc 3d 1120 [A] [2008]). "When persons of the nearest degree of relationship establish [their] standing, those more remote are excluded" (Matter of Henesey , 3 Misc 2d 660, 662 [1956], quoting Matter of Wendel , 143 Misc 480 [1932], aff'd 3 AD2d 834 [1957] ). A person "who seeks to establish an interest in a decedent's estate as a collateral relative must show that all lines of descent which would precede his or her claim as a distributee are exhausted" (Matter of Dinzey , NYLJ, June 9, 2003, at 33, col 4).
Unlike an informal search seeking information about a person's personal family history, the nature of the proof required in kinship proceedings is more stringent and has become well-established over the years (2 Harris 5th, NY Estates: Probate Administration & Litigation , § 21:19). "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 [ 2013] and Matter of Antolin , 2020 NY Slip Op 34482 [U], 2020 NY Misc LEXIS 15359, dec. Mar. 6, 2020). "[C]laimants who fail to offer evidence to exclude the possible existence of persons who would have an equal right to share in the estate fail to establish their rights as distributees ( Matter of Hasser , 187 Misc 368 [1946] )" (Matter of Darienzo , NYLJ, July 23, 2010, at 36, col 5).
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 by EPTL 4-1.1 (see Matter of Dinzey, supra ). This burden is met by a preponderance of the credible evidence (see Matter of Paul , 2017 NY Misc LEXIS 674, 2018 NY Slip Op 30344 [U] [dec. Feb. 17, 2017]; see also, Matter of Whalen , 93 AD2d 891 [1983] ). For kinship to be established to the Court's satisfaction, 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 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).
Significantly for this case where claimants are at the cousin class, this Court [HOWE, J.] pointed out in Matter of Perry , 29 Misc 3d 1221(A) (2009), aff'd 78 AD3d 1590 [2010], that:
"In kinship proceedings where claimants claim to be decedent's cousins, proof is required to establish that they are issue of grandparents ( EPTL 4-1.1 [a][6] ). As I stated in Matter of Pacosz, ‘In order for the Court to determine status on this level, a common ancestor must be identified ( Matter of Tim , 6 Misc 2d 47 [1956], affd 8 AD2d 720 [1959] ). Until such identification is made, no family tree can be traced, and no judicial determination of pedigree can be made ( id. , at 51 ). It is only from that point on that a family tree can be constructed so as to allow parties an opportunity to successfully attach themselves (Matter of Dinzey, supra)' ( Matter of Pacosz , 22 Misc 3d 1105 [A]).
Thus, the identity of the grandparents, and the identity and number of their children are critical components in a kinship determination, not only as a starting point to allow cousin claimants the opportunity to establish their status, but to close the classes of grandparents, aunts, uncles, and cousins, as well " (emphasis added).
Finally, I point out that, pursuant to SCPA 2225(b), if three years have elapsed since a decedent's death, a Court may determine that there are no persons other than those before it entitled to share in the decedent's estate provided the parties have conducted a diligent and exhaustive search "from all available sources" to ascertain the existence of possible distributees. Here, because decedent died well more than three years ago, this presumption would be available if the other elements have been met. Whether this presumption applies is addressed in discussing the appropriate classes.
II.
Testimony was taken on two separate days [September 27, 2021 and July 18, 2022]. On the first day, Marcin Sokolowski [hereafter, Marcin], a Polish genealogist, testified, as did Danuta Kolarz [hereafter, Danuta], the daughter of alleged paternal first cousin Jozefa Szczesniak Kolarz, and Thomas Mellody [hereafter, Thomas], an alleged maternal first cousin once-removed.
Marcin, who has been a genealogist in Poland since 2002 , testified that he had been retained to research the paternal family line in Poland. He first determined that decedent's father had three siblings, Marianna, Kazimierz, and Jozef. From there, he researched whether or not those siblings had any descendants. Marcin discovered one child for Marianna -- Genowefa, who died in 1996 -- and four children for Jozef -- Stanislaus, Jan, Genowefa, and Jozefa, of whom only Jozefa is still living. Kazimierz is discussed infra.
Marcin was acknowledged by the parties to be an expert in genealogy.
Marcin testified that decedent's father, alternately referred to as John or Jan, emigrated to the United States, at age eighteen as a bachelor.
Though the testimony states that Marcin obtained this information from a ship manifest, no such manifest was offered as evidence at the hearing.
Marcin's conclusion from his research is that Jozefa is the only living first cousin and heir of decedent's on the paternal side, though he conceded on cross-examination the uncertainty of his conclusion:
"Q: And do you believe based on your research that if there was another cousin surviving, you would have been able to identify them?
A: I think so. Yes, if there was such a person, we would have found her/him. Of course, I'm not speaking about illegitimate children because that cannot be found, but I'm speaking about biological children.
* * *
Q: Okay. You made a comment that illegitimate children cannot be identified. Can you explain what you mean by that?
A: I need to clarify a bit. So it's not in the matter of illegitimate children, so children in which case the father is known but biological children where the father is noted as Unknown. Those are the children we cannot find. If the father's information is noted in the child's record, then it's not a problem to find, to identify that child. But, for example, we had a case where the entire village knew that a certain gentleman had a great number of children, but all those children had noted that the father was Unknown, so after 100 years, there's nothing we can do with that."
Marcin expanded on how uncertainty in the area of genealogical research can exist:
"Q: Okay. Looking specifically at the family tree now, going to our decedent's grandparents, how are we certain that they only had four children?
A: We will never be absolutely certain because let's say Franciszek left for six months somewhere and had a child there, we're not able to establish that, not knowing where he was at the time. However, checking all the information where the family resided, we did not find any other children. In Jozefa's death certificate, the name — the husband's name is provided as Franciszek. Francizsek dies as a widower, and so we have no other information that there could have been any more children. Of course, I cannot guarantee that Franciszek did not go away for some period of time and did not have children there, but nothing points to that."
To conduct his research, Marcin testified that he consulted national and local civil authorities in Poland and interviewed other living family members (none of whom were the same or higher degree of kinship level as Jozefa). He also contacted local church parishes, but did not know whether he had received responses from all of the inquiries he had made.
Danuta, the daughter of paternal claimant Jozefa, also testified. She said that her mother agreed with the accuracy of the paternal family tree which was before the court , and she also testified that all of Jozefa's siblings were deceased.
The family tree was received in evidence on consent of all parties.
Last to testify on the first day of the hearing was Thomas Mellody, who testified that his deceased mother, Adele Irene Lezan Mellody, had been a maternal first cousin of decedent's. He also testified about who, besides himself, were decedent's other maternal first cousins once-removed.
Thomas stated that decedent had married a woman from Poland, but that it "was a very short marriage", ending in the "late 60's, early 70's." Thomas' knowledge of the divorce came from his having seen divorce papers at decedent's house. Thomas also opined that decedent had no children, marital or nonmarital.
A copy of the divorce decree, issued by Erie County Supreme Court in 1971, was received in evidence.
Thomas testified that decedent's parents, John and Catherine, had three children from their marriage: Henry, Stanley, and decedent, with decedent being the last of those children to die. As far as Thomas knew, neither Henry nor Stanley had any children.
Thomas also testified that Stanley had never married, although other testimony indicated that Stanley was, in fact, married to a woman named Arlene.
At the second day of the hearing, two additional genealogists testified, namely Robert Barrett [hereafter, Robert] and Victoria Capobianco [hereafter, Victoria] .
All parties stipulated that both Robert and Victoria were expert genealogists.
Robert, a professional genealogist with 26 years' experience, testified that, using genealogical records available to him, he was able to make a variety of determinations. Describing his methods, Robert testified
"We begin by — and we begin with the decedent, in this case, Edwin John Szczesniak, and then we develop the family tree up the lineal bloodline, if you will. We identified the parents, the grandparents.
The very first thing you do, of course, is to determine if the decedent had any children, which we determined he did not. And then we try to determine if there's another closer level than cousins, which would be nieces and nephews, brothers and sisters. We also confirmed that there were no — those individuals.
So then we go to the next level, and that would be cousins or aunts and uncles. We develop it through various — using various genealogical search engines in the proprietary tools that we have.
And as far as certainty, you can never be one hundred percent certain, but we do everything we can to develop a reasonable certainty and a high level of certainty. Genealogy is not a perfect science or a hard science, but I believe we have fulfilled reasonable doubt on this particular case because we have an extraordinary amount of records and documents, et cetera."
Robert also stated that he relied significantly on work from a genealogical "correspondent" in Poland called Historiker to supplement his work. Using Historiker's research, Robert concluded there was only one living paternal distributee, Jozefa. Significantly, Robert testified that he could not read the documents provided to him by Historiker because they were in Polish, which he did not read or understand, thus reducing his conclusions to whatever Historiker had concluded. He then testified regarding the maternal heirs, and here again he relied on the work of others he had hired to search out documents and the like.
Finally, Victoria testified. Also a professional genealogist, she was retained specifically to research the family of decedent's parents, John and Catherine, and the children of Catherine's brother, Adam Jarosz. To conduct her research, she "use[d] the genealogical proof standard which involves using a wide variety of available resources to come to a reasoned conclusion after a reasonably exhaustive search." This search, she testified, included researching naturalization records, New York State birth indexes, and newspaper articles.
III.
I turn now to a consideration of the proof before me.
(a)
Spouse
Decedent was married at one time to a woman named Hanna. Paternal claimant exhibit #2 is a Judgment of Erie County Supreme Court [Kelly, JSC], dated November 12, 1971, in which the marriage between decedent and Hanna was dissolved based upon Hanna's abandonment of decedent. The Judgment, which appears to have been granted ex parte, recites that decedent and Hanna had been married in Poland in June, 1964, and that "there are no children born of the marriage."
Robert testified that decedent never remarried after his divorce to Hanna, but he never explained the basis for that conclusion. Victoria also testified that she believed decedent never remarried after his divorce from Hanna:
"I also performed a search of the New York State Department of Health's printed marriages for all of New York State outside New York City , and when I did that, I did not find any marriages that Edwin was involved in.
And I — in my newspaper research, I did not find any marriageannouncements in the local Lackawanna and Buffalo newspapers for any additional marriages" (emphasis added).
It is unclear why Victoria excluded New York City from her data base research, but that omission leaves a significant gap in her New York State record search. Her research also leaves a marriage anywhere outside New York possible.
In this state of the proof, I find that the spousal class has not been closed, and the provisions of SCPA 2225(b) are inapplicable.
(b)
Issue
Decedent's 1971 divorce decree states that there are no children of the marriage between decedent and Hanna.
Robert testified that he was unable to find evidence of any children of decedent's, leading him to "confirm with great confidence" that decedent had not had any children. Robert's conclusion is entitled to virtually no weight because there is no testimony about where he searched, what resources he used, or what documentary proof he examined.
Victoria testified that decedent's parents — John and Catherine — had no grandchildren, meaning, of course, that decedent had had no children. With regard to decedent, Victoria relied on the 1971 divorce decree which stated that decedent and Hanna had had no children.
Thomas , who was born in 1948, testified that, when he served as decedent's caretaker from 2012 until decedent's death, he never saw any evidence, including photographs or paperwork, to suggest that decedent had had any children. He also opined — with absolutely no basis presented in the record supporting his assertion -- that, if decedent had ever had any children, he would have known about that.
Although Thomas is an interested party, his testimony was given some weight which is necessarily tempered by his admitted lack of direct knowledge about what he reported.
Here, there are enormous unaccounted for gaps in what took place in decedent's life. For example, it is known that decedent served in World War II, but from the end of that war in 1945 until his documented marriage in Poland to Hanna in 1964 — a nearly 20-year period — there is a complete evidentiary void about decedent's life in the record before me. And, although Thomas testified that he acted as a caretaker for decedent in the last "four or five years" of decedent's life, there is a 40-year period from decedent's 1971 divorce from Hanna until Thomas began his caregiving for decedent which, on the record, claimants apparently seek to explain by Thomas' characterization of decedent as "a loner ... He was a -- a very unusual sort." The "loner" characterization is particularly odd when considering that decedent's occupation, according to his death certificate on which Thomas was the informant, was as the owner of a bar and restaurant (seemingly not a "loner's" occupation).
When Thomas opined that decedent had not had any "out of wedlock children", he based his view on "[j]ust from family talk and -- I don't know of any." Here again, this is simply unfounded guesswork by Thomas; and the testimony of Robert and Victoria that decedent never had any children is similarly without any substantial or reliable foundation.
(c)
Before proceeding further, it is clear that the primary distributee classes of spouse and issue remain open and unresolved. The common evidentiary problem in claimants' proof is that they have left nearly 60 years of decedent's life largely ignored and unexplained — from the end of World War II to 1964 (when decedent married Hanna in Poland) and from 1971 (when decedent divorced Hanna) to roughly 2012 (when Thomas began his stint as then-88 year old decedent's caretaker) -- both from an evidentiary and documentary, as well as — for whatever it might be worth — an anecdotal, perspective. And, what little anecdotal evidence there is about any of this period was elicited from Thomas by the Assistant Attorney General rather than by claimants.
It is important at this point to take up certain claims about the children class made by the paternal claimant. The GAL has posited that, based upon her review of the evidence and given the significant unexplained periods of decedent's life, the spouse and children classes, among others, "remain wide open". Jozefa's attorney disputes this analysis, as follows:
"The GAL's conclusion seems to be based on the fact that any male who was overseas or unsupervised at any time during [his] adolescence or early adulthood was capable of impregnating a woman and, therefore, must have children somewhere in the world. That conclusion is the opposite of the presumption required by SCPA and [EPTL]. Also, the only way to explore this is perhaps to have anybody who possibly encountered any military soldier during this time period testify or have DNA testing done. Not only is that impossible, but it is also well beyond the standard and burden of proof."
Counsel, in attempting to reduce the GAL's analysis of the proof to an absurd level, entirely misses the point. It is a claimant's burden to establish from the credible evidence that decedent had no issue. Here, claimant has left sixty (60) years or so of decedent's life unaddressed;and, as the GAL properly points out, decedent could have fathered a child at any time during that period either in the United States, Poland, or wherever he was during or after his military service. Claimant has done nothing to address that, and, indeed, has consigned those sixty (60) years of decedent's life to an evidentiary vacuum.
Counsel also states that "[t]he role of the GAL is to assist in locating the unknown heirs and to represent them in this intestate proceeding. The GAL offered no proof of additional unknown distributees." Putting aside the logical contradictions in this position, counsel wholly misperceives the role of a guardian ad litem appointed to represent the interests of possible unknown heirs. As this Court [HOWE, J.] said in Matter of Lelito , supra , the "function in a kinship proceeding" of the guardian ad litem for unknown heirs "has been said, in effect, to be to hold claimants' feet to the evidentiary fire", citing Weinschenk, "An Update on Kinship Proof in Surrogate's Court", NYLJ, Oct. 9, 1992, at 1, col 1. The GAL's role is not , as counsel would have it, to conduct an independent search for kinship evidence and bring any such evidence before the Court.
Here, there is no satisfactory proof before this Court that decedent never had any children, and, from the record before me there were no diligent and exhaustive efforts made by any of the claimants to search for any possible issue of decedent's (thereby precluding the application of SCPA 2225[b] ). Thus, the class of issue cannot be closed.
(d)
Parents
Decedent's parents were John (also known as Jan) Szczesniak and Catherine (also known as Katarzyna) Jarosz Szczesniak. Both were born in Poland. And, for consistency hereafter, decedent's parents will be referred to as John and Catherine (unless there is an evidentiary reason to vary the spelling).
There is no birth certificate in the record for decedent. Further, decedent's death certificate lists both his mother and father as "unknown." In that regard, it is worth noting that Thomas, upon whose testimony both sides rely, was the informant on decedent's death certificate and he had no idea who decedent's parents were, thus showing how little he may actually have known about decedent.
All that said, both Robert and Victoria testified to their belief that John and Catherine were decedent's parents. In part, that conclusion — at least by Victoria — was based on John's 1969 obituary (exhibit #4) which listed decedent as one of John's three named children (together with Henry and Stanley). Henry's and Stanley's death certificates (exhibits #6 and #8 respectively) show "John Szczesniak" and "Kathyrn Garos" — or "Catherine Jarosz" as spelled on exhibit #8 — as each one's father and mother. There are other documents in evidence before me which establish that decedent, Henry and Stanley were all brothers, and exhibit #5, discussed infra , ties all of these individuals together as a family unit of father, mother and their three children.
I conclude, therefore, given the totality of the proof, that decedent was a child of John and Catherine.
Turning to the question of whether either of his parents survived decedent, it is true that there are no death certificates for either John or Catherine. However, a certified translation of John's birth certificate (exhibit #3) shows his date of birth as January 5/17, 1894 . Thus, John would have been over 123 years of age when decedent died, and "it is well settled that persons who would be more than 100 years old at the time of [a] decedent's death are presumed to have predeceased decedent (see, Young v. Shulenberg , 165 NY 385 ; Matter of Harris , 23 Misc 2d 595 ;Matter of Katz , 135 Misc 861 )" (Matter of Cosgrove , NYLJ, Apr. 22, 1999, at 25, col 3; see also, Matter of Zepf , 2016 NY Slip Op 32034 [U], dec. Aug. 30, 2016). Combined with the 1969 obituary for John, I conclude that John predeceased decedent.
John's 1894 birth date is written in this fashion due to the Russian calendar conversion of 1918. See https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/old-style. The Polish area where John was born had long been under Russian control until after 1918 when Poland again became a sovereign nation.
With respect to Catherine, there is neither a death certificate nor an obituary. However, John's obituary states that he "was the beloved husband of the late Katherine Szczesniak (nee Jarosz) " (emphasis added). It is true, as this Court has pointed out in Matter of Smith , Erie Co. Surr. Ct. file # 2019-708/B, that "[o]bituaries are not primary documents, but are essentially a form of hearsay because it is not known who supplied the information forming the basis of the article" (Memorandum and Order, dated April 25, 2023, at p. 18). Here, however, there are other documents in the record which support what is stated in John's obituary. For example, exhibit #5 is a photograph of the Szczesniak family gravestone. The photograph lists, in the order shown from left to right, son ["syn"] Edwin [birthdate cut off but date of death 2017], father ["ojciec"] Jan [1894-1969], mother ["majica"] Katarzyna [1897-1964], and son ["syn"] Henry [1922-1974]. Finally, Robert testified that Catherine died in Syracuse, New York, in 1964, although it is uncertain whether the place of Catherine's death is correct because there is nothing documentary to buttress Robert's testimony.
I conclude, again based on the totality of the proof, that Catherine predeceased decedent.
Thus, the class of parents has been closed.
(e)
Siblings, Nieces and Nephews
Decedent's brother Henry was born on November 3, 1922, and he died on November 28, 1974. Records from his estate proceeding in this court [file #75-2352] establish that Henry was not survived by a spouse or issue, his distributees being his brother Stanley and the within decedent [brother Edwin].
Decedent's brother Stanley was born on March 11, 1924, and he died on March 30, 1979. Records from his estate in this court [file #79-2080] establish that Stanley was survived by his wife Arlene and that he had no children. To the extent that Stanley's obituary refers to children surviving him, genealogist Victoria has credibly explained that the children referred to were Arlene's from a prior marriage, pointing to specific documents which led her to that conclusion. And, finally, there is an affidavit in Stanley's estate file from a woman who had known Stanley and Arlene since at least 1961, who was present at their 1961 wedding, and who attested that Arlene was Stanley's sole distributee.
I conclude, based upon the foregoing, that decedent was not survived by any siblings, nieces or nephews.
IV.
The classes of spouse and issue having been discussed but remaining open and unresolved at this point, and the classes of parents, siblings and nieces and nephews having been addressed and resolved, it is still necessary to consider the grandparental lines of possible inheritance if, in the future, further proof is presented to resolve the priority classes of spouse and issue. Thus, each grandparental line of descent, paternal and maternal, must be considered separately (see Matter of Perry , supra ).
(a)
(i)
Paternal Grandparents
John, decedent's father, was born to Franciszek Szczesniak and Jozefa Szybalska Szczesniak, as evidenced by the certified translation of John's birth certificate (exhibit #3), which lists both as his parents.
Grandfather Franciszek was born on September 14, 1864, and grandmother Jozefa was born on March 1, 1870. Certified translations of each of their birth certificates were admitted into evidence on consent of all parties. As each would have been in excess of 140 years old when decedent died had either survived him, I am satisfied that they predeceased decedent despite the lack of documentation regarding their respective deaths (see, e.g., Matter of Zepf, supra ).
(ii)
Paternal Aunts and Uncles
In addition to John, the record shows that decedent's paternal grandparents had three other children: Marianna, Kazimierz, and Jozef (who would be decedent's paternal aunt and uncles, respectively).
Aunt Marianna was born on November 15/27, 1891, in Olganów, now in modern-day Poland. The certified translation of her birth certificate shows that her parents are Franciszek and Jozefa. Marianna married Josef Buckowski in 1910, and she died on July 1, 1976. Certified translations of Marianna's birth certificate, marriage certificate, and death certificate are in evidence.
Uncle Kazimierz was born on January 30/February 11, 1897 in Olganów, and his birth certificate lists his parents as Franciszek and Jozefa. However, no death certificate was offered. Genealogist Marcin stated that he was only able to locate a birth certificate, with nothing more known about Uncle Kazimierz except for a family anecdote:
"According to the family, Kazimierz died at a young age, somewhere between 1918 and 1920. I'm sorry, died or was killed. Most probably as part of World War I, which was ending at the time."
Marcin explained this further:
"Q: With regard — with regard to, and I apologize, Kazimierz? That's how I'm going to pronounce it, I apologize, who was one of the three siblings of Edwin's dad, Jan. My question is, why could you not find a death certificate for him?
A: There could be many reasons. Different reasons. One which is most probable is that World War I was ending. There was chaos. Poland was becoming an independent nation again after 129 years, because prior to that there was no such state as Poland, and right after that, there were very heavy battles with Bolsheviks, the Soviets. If he died somewhere as a soldier, as a volunteer, then simply no one noted that. If he died somewhere in the area, then probably, most probably, it would have been noted. I also assume that he would have remained in the memory of the family more strongly, but no one in the family can even think of ever having seen his grave. But those are just my ruminations."
Despite the uncertainty with respect to what had happened to Uncle Kazimierz, I note that he would have been approximately 120 years of age when decedent died, which allows me to find that he predeceased decedent (see, Matter of Zepf, supra ).
Uncle Jozef was born on August 19/September 1, 1900, also in Olganów. On his birth certificate, his parents are listed as Franciszek and Jozefa. He died on October 9, 1973. Certified translations of Jozef's birth certificate and death certificate are in evidence.
I conclude, therefore, that paternal aunt Marianna, and paternal uncles Kazimierz and Jozef, were decedent's only siblings and that all those siblings predeceased decedent.
(iii)
Paternal First Cousins
A. The Uncle Jozef Szczesniak line.
According to Marcin, his research had determined that paternal uncle "Jozef had four children. Two sons, Stanislaus and Jan, both are deceased, and two daughters, Genowefa, who died, and Jozefa, who is living."
Stanislaus [Stanislaw] was, according to the certified translation of his death certificate (exhibit #20), born on September 14, 1925 in Olganów. His death certificate lists his parents as Jozef Szczesniak and Katarzyna Wlazlo, and he died on June 18, 1997.
Jan, according to his translated death certificate (exhibit #22), was born on October 10, 1927 in Olganow to Jozef Szczesniak and Katarzyna Wlazlo; and he died on November 18, 1989.
Genowefa was, according to the certified translation of her death certificate (exhibit #24), born on April 20, 1930 in Olganów. Her parents are listed as Josef Szczesniak and Katarzyna Wlazlo, and she died on March 30, 2016.
Jozefa is a living first cousin claimant. Inexplicably, there is no documentary evidence in the record to establish her status as a child of Jozef Szczesniak. Even though Jozefa's daughter, Danuta, testified very briefly, no testimony was elicited from her about the identity of her mother's parents, or even the identities of her mother's siblings. Danuta testified that she had shown the paternal family tree (exhibit #26) to her mother and that "Mom agrees with all the information." Danuta also testified that she herself believed that exhibit to be accurate, although no family details were explored nor was the basis for her belief delved into.
To summarize the Uncle Jozef line, the documentary evidence before me establishes that first cousins Genowefa, Stanislaw, and Jan all share the same parents and that all predeceased decedent. While I credit Marcin's testimony on the Uncle Jozef line, including his testimony about Jozefa, I find it inexplicable that there was no documentary proof provided to establish Jozefa's status and connection to decedent here, and I direct that, if the parties seek to reopen the hearing (see infra ), some additional, documentary, proof in regard to Jozefa's status must be provided.
B. The Aunt Marianna Szczesniak Buckowski Line.
Genowefa, who married Wincenty Gwozdz, was, according to the certified translation of her death certificate, born on December 18, 1911 in Olganów. Her parents are listed as Marianna Sczcesniak and Jozef Buckowski. She died on July 27, 1996.
Marcin testified that Aunt Marianna had only one child, but he did not elaborate on what had led him to that conclusion. Similar reference was also made by Robert, who "confirmed" Marcin's findings, but admitted his conclusion was based solely on a review of Marcin's research (which was never detailed for the record). No other evidence, documentary or testimonial, was offered.
Although it is clear that Genowefa was Aunt Marianna's daughter, and that she predeceased decedent, the evidentiary record is not sufficient to conclude that she was Aunt Marianna's only child. It may be that Marcin could provide further proof in that regard, but at this point no such additional proof exists in the record.
C. The Uncle Kazimierz Szczesniak Line
Here, there is no evidence regarding whether uncle Kazimierz did, or did not, have any issue, and, if he had issue, who they were and what happened to them. The problem in this regard is that nobody seemingly knows — or at least nobody has discussed -- what became of uncle Kazimierz almost from the date of his birth in 1897, although family lore reported to genealogist Marcin is that he may have died at some unknown place some time between 1918 and 1920. While I have been able to conclude that uncle Kazimierz did not survive decedent by applying a well-accepted evidentiary presumption, I am unable to find that he did not have issue or that any such issue would have predeceased decedent.
Thus, the uncle Kazimierz line has not been closed; and, because there has been no showing of any efforts, diligent, exhaustive or otherwise, to close off such line of descent, the SCPA 2225(b) presumption is inapplicable.
In sum, with respect to the paternal first cousin class , I find that the class remains open and unresolved, with the status of only one such paternal first cousin, Jozefa, even arguably established.
(b)
(i)
Maternal Grandparents
With respect to the maternal line — that is, starting with the parents of decedent's mother, Catherine Jarosz — the record is sparse. There is no birth or death certificate for Catherine. Completely missing from the record are any details — testimonial or documentary — regarding Catherine's parents other than certain references to their names. For example, the birth certificate for Catherine's brother, Adam Jarosz (discussed in greater detail infra ), lists his parents' names as Barthomiej Jarosz and Jozefa Nowocin, while the death certificate for Mary (Jarosz) Lezan Rudnicki, Catherine's sister, also lists those two persons as her parents.
Other references exist in the record to both individuals but there has been no specific proof in the record before me as a proper starting point for the maternal side of decedent's family tree. Put another way, there is nothing before me to establish that Catherine Jarosz's parents were both the same as Adam's and Mary's parents. Indeed, the maternal family trees (exhibits #45 and A) do not even list the names of decedent's maternal grandparents.
(ii)
Maternal Aunts and Uncles
Some of the testimony indicates that decedent's mother Catherine had two siblings, Mary and Adam. However, I point out that the maternal family tree at exhibit A lists only Mary as a sibling of Catherine's and makes no mention of Adam. Furthermore, Thomas Mellody, Mary's grandson, testified that he was not aware whether Mary had any sibling(s) other than Catherine.
However, I proceed with a review of the record proof as if the defects just noted with respect to Catherine's parents and siblings can subsequently be cured.
As already noted, Aunt Mary, according to her death certificate, was born in Poland on March 14, 1895, and she died on March 24, 1968, in Lackawanna, New York (where the death certificate says she had resided for 55 years). Her death certificate lists her parents as Bartholomew Jarosz and Josephine Nowocin; and her obituary notes that she was the "beloved wife of Maryan Rudnicki and the late Casimer Lezan". Other than Mary's obituary (which did not mention her parents or siblings), no other documentary evidence for her was produced. At the hearing, genealogist Victoria testified that "I did not know the names of [Catherine's] parents", but identified Mary as Catherine's sister and Adam as the brother of them both (although the basis for that conclusion is not specified).
Uncle Adam -- according to his death certificate (the informant on which was his wife, Jadwiga) — was born in Poland on November 16, 1887 to Bartholomiej Jarosz and Josefa Nowocin, and he died in Lackawanna, New York on May 20, 1940 (exhibit #27). No other documentation was offered for Adam.
In this state of the record regarding the maternal aunts and uncles, the evidence is not sufficient to close that class. And, because there is nothing before me to explain what efforts were made to determine who the maternal aunts and uncles of decedent may have been, the provisions of SCPA 2225(b) cannot be applied.
(iii)
Maternal First Cousins
Testimony from Robert was that Aunt Mary (Jarosz) Lezan Rudnicki had six children: Adele Irene, Steven, Alfred, Thaddeus, Lillian, and Charlotte, all of whom predeceased decedent. Uncle Adam Jarosz, according to exhibit #45 (a family tree), had five children: Jean, Thaddeus, Edwin, Wanda and Bronislaw.
A. The Aunt Mary Line
Adele Irene Lezan Mellody
According to obituaries which were entered into evidence, Adele, whose middle name was Irene, was the daughter of Mary Lezan Rudnicki. She was born on February 29, 1924 and died in Erie County, New York, on May 19, 2006 (exhibits #44 and I). However, except for obituaries, no other documentary evidence was received regarding Adele. Although both Robert and Victoria testified about Mary's children, they provided no documentation to buttress or explain their conclusions. Even the testimony of Thomas Mellody, Adele's son, failed to identify the general connection between his mother and decedent except for his assertion that he, Thomas, was decedent's first cousin once-removed, and he also testified that his mother had predeceased decedent.
Steven Casimer Lezan
Steven was, according to his death certificate, born on December 20, 1920, and died on January 2, 1990. However, the death certificate lists both mother and father as "unknown." Steven's obituary contains no biographical information, stating simply that "services were held at the convenience of the family."
The death certificate references a date of death of January 2, 1990, while the obituary lists the date of death as January 2, 1989. The other deaths on the obit page are for January, 1990, so I conclude the "!989" date was a typographical error.
Other than the references to Steven in various other family obituaries, no other documentary evidence connects Steven to a common ancestor.
Alfred Eugene Rudnicki
Alfred's death certificate (exhibit J) states that he was born on May 25, 1931 to Marion Rudnicki and Mary Ann Jarosz, and he died on July 13, 1986 in Lackawanna, New York. His obituary ties him to Aunt Mary's other five (5) children. Again, other than obituaries, no other documentary evidence was produced to connect Alfred to decedent.
Thaddeus Lezan
The death certificate for Thaddeus (exhibit K) states that he was born on August 12, 1926, in Lackawanna, New York, to Casimer Lezan and Maryann Jarosz. The informant was his sister Lillian, and the death certificate says Thaddeus was never married. No documentary evidence other than obituaries was offered to connect Thaddeus to decedent. Thaddeus died on September 3, 1990 in Lackawanna, New York.
Lillian Opolinski
According to her death certificate (exhibit H), Lillian was born on December 28, 1918 to Casimer Lezan and "Marion" Jarosz. Other than obituaries, no other documentary evidence was submitted to connect Lillian to a common ancestor of decedent's. Lillian died on June 7, 1993 in Lackawanna, New York.
Charlotte Romenia Lezan-Bolden
Charlotte, according to her death certificate, was born on December 5, 1916 to Casimer Lezan and Mary Jarosz. Again, except for obituaries, there is no documentary evidence linking to decedent. Charlotte died on August 20, 1986 in Lackawanna, New York.
B. The Uncle Adam Line
The maternal family tree in evidence as exhibit #45 lists five children for Adam Jarosz: Jean, Thaddeus, Edwin, Wanda and Bronislaw. Robert testified that "Adam Jarosz had five children: Wanda Jarosz, Edwin Jarosz, deceased. Thaddeus Jarosz, deceased. Bronislaw Jarosz, deceased, and Jean Jarosz. I believe she was married twice, last to a Jarosz." Robert said all five had predeceased decedent.
Victoria identified the same five children of Uncle Adam, and she testified, as had Robert, that all five had predeceased decedent. Victoria said that not all of Adam's children had obituaries, "but the ones that had obituaries, I did review".
The documents introduced for Uncle Adam's five children consist of (1) an obituary (exhibit #29) for Bronislaw ["Brownie"], who died in 1966, brother of Jean Chmiaiewiec [?], Thaddeus, Wanda and "the late Edwin", (2) a Social Security Death Index (exhibit #30) for "Jean Jarnot", who was born on June 26, 1919 and died in January 1984 in Buffalo, New York, (3) a "verification of burial" form (exhibit #28) from the Catholic Cemeteries of the Diocese of Buffalo, Holy Cross Cemetery, Lackawanna, New York, showing a grave space "assigned to: Thaddeus Jarosz — DOD 01/02/1989", and (4) an obituary (exhibit #32) for "Wanda P. Jarosz TELEGO", "of Lackawanna", who died January 25, 1985, and who was the "dearest daughter of late Adam and Jadwiga Jarosz; sister of Ted (Flash), the late Mrs. Jean (Bob) Jarnot, Brownie (B.J.), and Edwin Jarosz". There is no documentary proof specifically provided for Edwin Jarosz, and there is no explanation why none was either sought or introduced.
The only testimony before me to close the class of maternal first cousins is the testimony of Thomas Mellody, an interested individual, and the conclusory testimony of two genealogists. Nobody took the genealogists at the hearing through the specific documents each had reviewed or asked each to explain why any such documents were reliable (or not). Robert conceded he relied significantly on the work of others, and Victoria's limited research is spelled out only in the most general terms. The testimony of Thomas, though interested, could be useful if it were corroborating other evidence , but, as discussed supra , there is very little documentary evidence before me for Thomas to corroborate (see, e.g., Matter of Lelito , supra ).
And, the testimony of the two genealogists about the steps taken and the research conducted by them is insufficient for me to conclude that the diligent and exhaustive efforts required by SCPA 2225(b) were taken here.
Therefore, the class of maternal first cousins cannot be closed.
(iv)
Maternal First Cousins Once-Removed
Several alleged maternal first cousins once-removed seek to share in decedent's estate. However, their inheritance rights are precluded by statute. EPTL 4-1.1(c)(6) provides that, where first cousins on one side survive a decedent, but only relatives more distant survive that decedent on the other side, only the first cousin(s) will inherit (see, Matter of Shumavon , 260 AD2d 140 [1999] ; see also, Matter of Groden , 2023 NYLJ LEXIS 112 [dec. Jan. 17, 2023] and Matter of Pitcher , 35 Misc 3d 1224 [A] [2012]). Although the first cousin class has not been closed at the moment, and I have requested some documentary proof for the one known living member of that class [Jozefa Szczesniak Kolarz], if that class is ultimately closed at a later time its member(s) are the only one(s) entitled to inherit here.
Thus, it is not necessary to examine the class of paternal cousins once-removed.
V.
As I have said previously in Estate of Smith , "[t]here is no room for speculation in a kinship hearing. The oral testimony and documentary proof must be cumulative and consistent in order for a Court, as trier of fact, to determine a claimant's rights in an estate" (Memorandum and Order, supra, at p. 23).
In this case, both sides have glossed over 60 years of decedent's life [1945-1964 and 1971-2012] and made not the slightest effort to explain what occurred with him. It is frankly astounding that, when it is known (i) that many members of the Szczesniak family, including decedent, settled long ago in the Erie County, New York area, (ii) that decedent owned and operated a business in this area, and (iii) that there are many family members who died and are buried in this area, that there is no documentary proof other than sketchy obituaries or death notices, and no oral evidence about this family and decedent from non-interested witnesses. Furthermore, the seven (7) years of decedent's marriage to Hanna have essentially been written off as "they were married — they were divorced". The judgment of divorce was granted on default, so the underlying information provided to that Court — which is not in the record before me — may, or may not, have been accurate, including the finding that there were no children of the marriage. Nobody, apparently, has sought out, even if just through any available internet search engines, what happened with Hanna and what proof there might be in relation to her which would assist in shedding light on decedent's life.
I conclude, therefore, that the proof before me is legally insufficient to establish who is entitled to inherit all or any part of decedent's estate.
Accordingly, I direct that, if any claimant wishes to move to the proof in this matter, any such motion must be made on or before March 1, 2024 , on notice to all other interested parties. If no such application is made by that date, the net proceeds of this estate, as adjusted for the payment of commissions, attorney's fees, and GAL's fees, shall be paid to the Office of the New York State Comptroller for the benefit of the heirs of Edwin Szczesniak.
Finally, the Guardian ad Litem shall efile her fee application on or before January 24, 2024 , copying counsel for all parties. Any answering papers to the fee application must be efiled and served on or before February 2, 2024, after which this Court will decide that application on the papers.
This decision shall constitute the Order of this Court and no other or further order shall be required.