Opinion
3000/2003.
Decided July 21, 2004.
James G. Yastion, Esq., Bashian, Enea Sirignano, LLP, White Plains, NY.
Nancy J. Rudolph, Esq., Bleakley Platt Schmidt, LLP, White Plains, NY.
The petitioner and the cross-petitioner in these proceedings are sisters, each of whom seek letters of administration of the estate of their mother, Pi-Eng Wu a/k/a/ Peggy Wu ("decedent"). They have stipulated that the court consider the pleadings and papers submitted in support as motions for summary judgment on the merits of each petition. The petition is denied, and the cross-petition is granted in accordance with the following.
On February 10, 2002, the decedent passed away during a trip to Taiwan to visit her family. She died intestate, leaving real property in Scarsdale, New York and Taiwan. The petitioner, Catherine Wu Laing (Catherine or the petitioner), the decedent's eldest daughter, commenced an administration proceeding December 3, 2003, so that the decedent's sole asset in the United States, a house in Scarsdale, could be sold. Her sister, Sophia Shu Fen Wu (Sophia or the cross-petitioner) filed objections to the petition and a cross-petition seeking the grant of letters to her instead. Three of the decedent's five children have renounced their rights to Letters of Administration, consented to the appointment of Sophia and oppose Catherine's appointment.
Catherine filed objections to Sophia's cross-petition, and the parties engaged in preliminary discovery. Catherine then moved for leave to amend her petition to seek the appointment of the Public Administrator (PA), either temporarily or permanently, for an order granting letters to the PA, and for a stay of discovery during the pendency of the motion. During a conference with the court, the parties stipulated that the motion would be deemed one for summary judgment by both parties, that discovery would be stayed during the pendency of the motion, and the petitions be decided on their merits, based upon the pleadings and papers filed upon the motion.
Catherine alleges, in her Affidavit in Support of the motion, that the Public Administrator should be appointed because Sophia has refused to consent to the grant of letters and the estate's sole asset is being endangered by the delay. She asserts that her expertise as a real estate broker makes her the better administrator and that Sophia has a conflict of interest which makes her a poor choice, in that she failed to demand rent for the Scarsdale house from their brother, Francis Wu, whose family lived there until late June of 2004.
Sophia alleges that she and her eldest brother, Rong-Tsun Wu, have arranged for their mother's funeral, kept track of all estate expenses, handled the decedent's real estate and personal property located in Taiwan, filed the necessary tax returns in the United States and in Taiwan, and taken all possible steps to safeguard the estate, considering that no letters have been granted in New York. She states that, after letters have been granted, she will have the obligation and the authority to review the amounts Francis paid for taxes and upkeep to determine if additional payments for rent are appropriate. Sophia points out that she resides in Westchester, is in close touch with all of her brothers, they support her application and oppose Sophia's, and she is a college graduate with the education and experience necessary to deal with all issues concerning the estate.
Sophia also asserts that Catherine has not been in close touch with her siblings, failed to visit their mother while she was ill, failed to attend the funeral, has moved very frequently, has been difficult to communicate with, now lives in Virginia, and has generally been in conflict with and lost the trust of her siblings. The brothers have submitted affidavits to the same effect. They prefer that permanent letters issue to Sophia, but do not oppose the appointment of the Public Administrator, should the court find it advisable.
SCPA 1001 sets forth the mandatory priority list for the grant of letters of administration. Letters must issue to the individual with statutory priority, unless he or she is shown to be unqualified ( In re Salvan, 132 AD2d 662). Children of the decedent have equal priority among themselves, and the court may grant letters to one or more of them (SCPA 1001[f][I]).
Catherine alleges that Sophia is not a suitable fiduciary, based upon her failure to collect rent from Frances and to deal with the Scarsdale real estate. However, unless letters have been issued to a person, she has no authority to deal with the estate's assets ( Dodd v. Anderson, 197 NY 466). The cross-petitioner had neither the right or responsibility to collect rent, and cannot be faulted for failing to do so.
The allegations as to Sophia's conduct do not constitute disqualifications within the meaning of SCPA 707, except for the allegation of misrepresentations concerning the estate's Taiwanese tax valuation. Sophia has provided an explanation of how Taiwanese taxes are calculated, an original and a translation of the sign-off letter from the Taiwanese taxation authorities and copies of the American federal tax returns. Catherine has not provided evidentiary support for her allegations or rebuttal of these proofs. No basis for the disqualification of the cross-petitioner has been established.
The request for the appointment of the Public Administrator is denied. The petitioner and the cross-petitioner both have statutory priority over the PA (SCPA 1001). The parties have stipulated that their applications should be treated as cross-motions for summary judgment, so that permanent letters may be granted without further delay. The appointment of the PA would constitute an unnecessary expense to the estate where two apparently qualified individuals with a higher priority have applied for letters.
When hostility makes two petitioners in the same class of priority unable to agree as to the estate's administration, the Surrogate may chose one of them (SCPA 1001[f]; Matter of Estate of De Hart, 8 Misc 2d 531). Preference is given to the person entitled to the largest share in the estate (see SCPA 1001[f]); Matter of Estate of Pearsall, 191 Misc 2d 66; Matter of Estate of Samuels, 204 Misc. 842), or, if the shares are equal, the one preferred by a majority of the distributees ( Matter of Estate of Nocera, 10 Misc 2d 495).
In this case, Sophia and her three brothers constitute the majority of the distributees, and represent the largest share of the estate. Sophia is a New York resident (see Matter of Estate of Eisenstein, 158 AD2d 597) who has assisted in the settlement of the decedent's Taiwanese estate, and has a good relationship with her brothers.
Accordingly, the petition is denied in its entirety, and the motion is denied in all respects. The cross-petition is granted, and letters of administration shall issue to Sophia Shu Fen Wu.
Settle decree.