Opinion
545-A/04.
Decided January 30, 2006.
In this application for the issuance of letters of administration to the petitioner, a niece of the decedent, Patrick Garner, a nephew of the decedent, filed objections. The decedent was survived by a total of sixteen distributees, including one infant distributee. Seven of the adult distributees had executed waivers and consents in support of the petitioner's application, while only Patrick Garner filed objections.
On the date scheduled for a pre-trial conference to fix a date certain for trial, the objectant appeared and stated that he would no longer be represented by counsel. He also indicated that he was reluctant to go forward with a trial, but that he, nevertheless, wished to be appointed the administrator. He further indicated that he thought he would be able to get a majority of the distributees to consent to his application. Based upon this statement, counsel for the petitioner agreed that the objectant would be afforded until December 30, 2005 to obtain acknowledged consents from a majority of the distributees.
On December 30, 2005, the objectant filed seven waivers and consents from distributees to the issuance of letters of administration to him.
These include the consents of three distributees who had previously consented to the petitioner's application, specifically withdrawing their prior consents. Thus, as of December 30, 2005, the objectant was favored over the petitioner by eight of the fifteen adult distributees whose combined interest in the estate exceeded the combined interest of those supporting the petitioner by 2.5% (50% to 47.5%, with the infant distributee having a 2.5% interest). Subsequently, two more distributees, each having a 2.5% interest, changed their consents to favor the objectant, so that the ratio becomes 55% to 42.5% in the objectant's favor.
Where, as here, two apparently eligible distributees have the same share in the estate and, accordingly, are equally entitled to administer the estate, the court has the discretion to appoint one or both of them (SCPA 1001[f][i]). In this situation the court will give weight to the distributee selected by the distributees entitled to the largest share of the estate (Matter of Edelson, 88 AD2d 640; Matter of Nocera, 10 Misc 2d 495; Matter of DeHart, 8 Misc 2d 531; Matter of Samuels, 204 Misc 842. The obvious rationale for this approach is that the voices of the distributees having the largest financial stake in the estate should be heard. This rule is also consistent with the statutory mandate that, where the contest is between two eligible distribuees and one of them has a larger share in the esate, preference is given to that distributee (SCPA 1001[f], see Matter of Pearsall, 191 Misc 2d 66, construing the "preference" as being mandatory).
Here, the fact that the petitioner is presently represented by counsel, while the objectant is not, is a factor in her favor. However, this is outweighed by the possibility that there are questions with regard to the petitioner's management of the decedent's assets both prior and subsequent to her death and that the objectant now has the support of a majority of the adult distributees who have the greater interest in the estate. Based upon these considerations, the objections shall be sustained provided that the following conditions are met: 1) that, within 75 days of the date of this decision and order, the objectant files a cross-petition for letters of administration and obtains jurisdiction over all of the necessary parties; 2) that no one establishes that the objectant is ineligible to receive letters; and 3) that the objectant files any bond that is required for his appointment within 30 days of the date of the decree directing the filing of such bond. Should the objectant fail to comply with any of the above conditions, his objections are dismissed and the petitioner may settle a decree awarding letters of administration to her upon her filing a surety bond in the penal sum of $87,000.
The Chief Clerk shall mail a copy of this decision and order to the objectant and to counsel for the petitioner.
Proceed accordingly.