Opinion
898-P/98.
Decided August 1, 2007.
Reginald Asiedu, Esq., for Susan Bonds, objectant-movant.
Steven B. Cottler, Esq., for Carrie Hargrow, executrix.
In this accounting proceeding, the objectant, the decedent's daughter, moves for partial summary judgment revoking the letters testamentary that issued to the decedent's spouse. The decedent's will provides that 50% of his residuary estate go to his spouse, 25% to the objectant and 25% to a son who appears to be aligned with the spouse, his mother, in this litigation. The movant alleges that she intends to petition to be appointed the successor fiduciary of the estate upon the removal of the executrix and requests that she be appointed the temporary administratrix while her successor fiduciary application is pending.
The decedent died on May 28, 1998. The filed account reports that the only assets of the estate are three income producing parcels of real property. The account reflects that the objectant and her family have been living rent-free in an apartment at one of the properties since the decedent's death. The movant alleges that the executrix should be removed for the following reasons: 1) the executrix commingled the rental income from the estate real property with her own bank accounts until June 1, 2006; 2) the executrix did not earn any interest on the $351,835.55 in rental income reflected in her account; 3) the executrix used estate funds to pay for her personal expenses; 4) the executrix distributed estate assets to a person who is not a beneficiary under the decedent's will; 5) the executrix conceded in her deposition that she has no records for certain periods and failed to include in her account income she collected for the use of garages at two of the premises; 6) the executrix knowingly allowed tenants to remain at below market rentals; and 7) the executrix conceded in her deposition that due to her age of 81 years and her impaired health she is "overwhelmed with three properties to manage."
Although the executrix concedes that she commingled estate assets with her own and that she no longer wants to assume the day-to-day management of the properties, she contends that she should not be removed as executrix for the following reasons: 1) her prior attorney did not advise her not to commingle estate assets with her own; 2) the estate did not incurr any loss from the commingling because the expenses of the properties exceeded their income; and 3) her son has now assumed the responsibility of managing the properties. The executrix disputes that the rentals charged were not appropriate and notes that if any improper payments or distributions have were made, such amounts can be deducted from her 50% interest in the estate. In the event that she is removed, the executrix requests that the Public Administrator, instead of the movant, be appointed as the successor fiduciary.
The court will not exercise its power to remove an executor, thereby nullifying a testator's choice, unless a statutory ground for removal is clearly established (Matter of Duke, 87 NY2d 465, 473; Matter of Leland, 219 NY 387, 392). Here, even if credence is given to the executrix' assertion that she did not intend to do anything wrong and that she will make good on any improper payments from her share of the estate, her conceded commingling of funds, failure to maintain complete and accurate records and inability to cope due to health and age dictate that her letters be revoked (SCPA 711, [8]; Flaum v Birnbaum, 191 AD2d 227; Matter of Grossman, 250 App Div 503). Accordingly, the branch of the motion seeking the revocation of the letters testamentary that issued to the spouse is granted.
The branch of the motion requesting that the objectant be appointed as the successor fiduciary cannot be granted at this time and she might not be a good choice at any time. Robert A. Kahn, Esq., is the only nominated alternate executor under the decedent's will. Consequently, he has priority to serve as the successor fiduciary, assuming that he is qualified and willing to undertake the responsibility of managing realty with respect to which the interested parties appear to have conflicting objectives. Should Mr. Kahn not serve as the successor fiduciary, the spouse might be correct in contending that the appointment of the Public Administrator is appropriate. Although the decedent bequeathed 25% of his residuary estate to the objectant, he did not nominate her as either a fiduciary or alternate fiduciary. Of greater significance is that the following circumstances might warrant the denial of any future application by the objectant to be appointed the successor fiduciary: 1) the hostility between the objectant, who has a 25% interest in all of the realty, and the spouse, who has a 50% interest, coupled with the fact that each resides at a different estate property, makes it extremely unlikely that either could impartially oversee the management and disposition of all three parcels of realty; and 2) the fact that the appointment of the objectant as the successor fiduciary might place her in the untenable position of having to seek the collection of past-due rents from herself (see Matter of Venezia, 25 AD3d 717; Matter of Thompson, 232 AD2d 219; Matter of Jurzykowski, 36 AD2d 488, affd 30 NY2d 510; Matter of Smith, 14 Misc 3d 1232 (A) [2007]; Matter of Rad, 162 Misc 2d 229).
Based upon the above special circumstances, this decision constitutes the order of the court directing the respective counsel for the objectant, the spouse and the Public Administrator to appear for a conference at the calendar call of August 22, 2007 at 9:30 a.m. to discuss the method and selection of a successor fiduciary. Mr. Kahn and the decedent's son also have the right to attend the conference. Should either of them fail to attend on that date, the court will assume that such party has no objection to the appointment of an interim successor fiduciary without further notice. After the conference, a decree shall be settled revoking the spouse's letters and appointing either a temporary or permanent successor fiduciary. The Chief Clerk shall deliver a copy of this decision and order to the Public Administrator and shall mail a copy to the decedent's son, Robert Kahn, Esq., and respective counsel for the objectant and the spouse.
Proceed accordingly.