Opinion
File 2018-346/B
02-09-2022
ESTATE OF KENNETH CLYDE OAKLEY, deceased.
Sean Denvir, Esq. (Ryan, Roach &Ryan) for Kathleen Roland and Susan Christiana, objectants William Collier, Esq. (Collier & Berger) and Peter F. Matera, Esq. for Kenneth Clarence Oakley, executor
Unpublished Opinion
Sean Denvir, Esq. (Ryan, Roach &Ryan) for Kathleen Roland and Susan Christiana, objectants William Collier, Esq. (Collier & Berger) and Peter F. Matera, Esq. for Kenneth Clarence Oakley, executor
DECISION/ORDER
Sara W. McGinty, Judge
When Kenneth Oakley died on May 30, 2017, his son and nominated executor was facing a serious health crisis of his own. His siblings were understanding when he put off filing a petition for probate to deal with his medical issues. When he did petition for letters testamentary, a year later, all of the beneficiaries waived their appearances and consented to his petition.
The decedent's will gave his property in equal shares to his six surviving children and the only child of his predeceased daughter. Letters testamentary were issued to Kenneth Clarence Oakley, the named executor in the will ("executor") on October 5, 2018. Unfortunately, the executor's appointment did not spur him to take up his fiduciary duties. The estate languished for years and it was only at the insistence of Kathleen Rowland and Susan Christiana (the "objectants") that the executor finally undertook to marshall assets.
Decedent's real property in Ulster County was the estate's single most valuable asset. Decedent's home was located on approximately 35 acres improved by a barn and two houses, only one of which was habitable (the "farm"), appraised at $315,000. A second, unimproved parcel, which the parties refer to as "the back yonder," was sold in March 2021 for $135,000. The remaining assets, valued at about $300,000, included bank accounts, savings bonds, proceeds from life insurance and stocks in IBM and Prudential.
A few months after his appointment, the objectants began asking their brother questions about the extent of the estate and his plans for sale of the farm and the back yonder. They followed up with texts and letters to the executor and to his attorney, to which they received no reply. The executor testified that while he kept his other siblings up to date about the estate, he did not extend this courtesy to Kathleen and Susan, because they were "hostile." He recalled in particular a conversation that turned "confrontational" when the objectants informed him that they had hired a lawyer.
In October 2019, Kathleen Roland and Susan Christiana ("objectants"), petitioned to compel an accounting by the executor and for related relief under SPCA § 2205. On the Court's order, the executor filed an intermediate accounting for the period from date of death to August 31, 2020. After settlement negotiations stalled in the spring of 2021, objections were filed.
The Court conducted a hearing on September 30 and October 1, 2021, taking testimony from the objectants and the executor. Two beneficiaries - William Oakley (decedent's son) and Brandon Buck Pra (decedent's grandson) - testified in support of the executor, expressing their consent to the $95,000 gifts he received from the decedent. At the conclusion of the hearing, the parties' attorneys were given the opportunity to file written summations, which they did.
The purpose of an accounting is to tell the story of an estate in dollars and cents. In it is found virtually every expression of a fiduciary's duty to those whose interests they have sworn to protect. A fiduciary's work begins at the "moment of death/' when their duty to preserve the assets of the estate is created (Estate of Donner, 82 N.Y.2d 574, 584 [1983]). Their accounting will reflect the extent to which they managed the estate's assets with the "diligence and prudence which an ordinary [person] would exercise in his [their] own affairs" (Matter of Shambo, 169 A.D.3d 1201, 1205 [3d Dept 2019]).
As estate administration proceeds, there is an on-going duty to maintain "clear and accurate accounts of the estate", which is critical to the duty to account (Matter of Jewett, 145 A.D.3d 114, 115 [3d Dept 2016], citations omitted). An accounting will also shed light on the extent to which a fiduciary may have strayed from the duty of "undivided and undiluted loyalty" to beneficiaries (Birnbaum v. Birnbaum, 73 N.Y.2d 461, 466 [2012]) or has failed to treat all legatees in like manner, making distributions impartially and without favor (Estate of Muller, 24 N.Y.2d 336, 344 [1969]). Fiduciary self-dealing violates this final essential precept and carries with it a presumption of impropriety (Estate of Naumoff 301 A.D.2d 802, 803 [3d Dept 2003]).
In a contested accounting, the fiduciary has the burden of proving that they have fully accounted for the entire estate (Matter of DiGiovanna, 148 A.D.3d 699 [3d Dept 2017]). A party contesting the accounting must then come forward with evidence of the inaccuracy of the account or the executor's improper exercise of his fiduciary duties (Estate of Rubin, 30 A.D.3d 668, 669 [3d Dept 2006]). Should that evidence be produced, the accounting fiduciary must establish, by a preponderance of the evidence, that their account is accurate and complete (Matter of DiGiovanna, 148 A.D.3d at 700.)
The executor had met his initial burden of proving that he had "fully accounted for the entire estate" by filing the petition, account schedules and affidavits of accounting parties, which are complete on their face (Matter of Cook, 177 A.D.3d 1214, 1216 [3d Dept 2019]).
The Court now turns to the objections to his conduct. The objectants cite the executor's self-dealing and negligence as the principal grounds for the relief sought. In addition, Kathleen Rowland, in her capacity as a claimant, seeks to compel the executor to deed a 6-acre portion of the farm in accordance with an oral agreement made with the decedent.
The principal acts which the objectants characterize as "self-dealing" took place in the final hours of decedent's life, when $95,000 was transferred from decedent's bank accounts to the nominated executor's personal account. In addition, the objectants cite the executor's use and occupancy of the farm, without compensation to the estate, as his residence and for his son's beef and poultry business. The objectants refer the Court to multi-year delays in marshalling assets, filing income tax returns, depositing dividend checks, paying real estate taxes, insuring the farm and selling decedent's stock as evidence of the executor's negligence.
GIFTS/SELF-DEALING. The objectants contend that $95,000 transferred from decedent to executor in the last few days of his life were not gifts, but were engineered by the executor for his exclusive benefit.
The requirements for a valid inter vivos gift are (1) an intent on the part of the donor to make a gift; (2) acceptance by the donee, and (3) delivery of the gift (Matter of Szabo, 10 N.Y.2d 94 at 98 [1961]). A donee who claims an inter vivos gift of an asset that would otherwise be part of an estate faces a heavy burden: "[t]he proof must be of great probative force and must clearly establish every element of a valid gift" (Matter of Kennedy, 36 A D 2d 549 [1971]).
The $95,000 gift was accomplished by means of 2 checks drawn on decedent's accounts. When a payment or gift is made by check, an agency relationship is created: the payee of the check is authorized, as the payor's agent, to deposit the check to complete the transfer of funds. The moneys are not "delivered" and payment is not deemed complete until the payee's bank credits it to their account. Death of the principal terminates the agency. A gift by check is thus complete only if the check has been deposited and credited to the payee/donee's account during the lifetime of the payor/donor (Matter of Mead, 90 Misc. 263 [Sur Ct NY Cty 1915]; aff'd 173 Ad 982 [1916]; aff'd 221 NY 645[1917]); see, also Estate of Horowitz, 2006 NY Misc. LEXIS 6597 [Sur Ct West Cty 2006]). Where such a check is not so delivered prior to the payor/donor's death, "the gift is incomplete and no valid transfer of the fund is effectuated" (Braunstein v. Russo, 2014 NY Misc. LEXIS 1048, *3 [2d Dept 2014]; quoting Matter of Grauds, 43 N.Y.S.2d 803, 817 [Sur Ct NY County 1943]).
A third check for $2,000 was used to purchase a tractor for use on the farm. This transaction has not been characterized as a gift. The tractor is an asset of the estate.
The bank records offered into evidence reflect that a $45,000 check drawn on decedent's account was deposited into the executor's personal KeyBank account on May 30, 2017. KeyBank did not credit it to his account until May 31, 2017, five days after his father's death. This gift was therefore not complete at the decedent's death and the proceeds must be returned to the estate.
Both gifts were deposited into a joint account maintained by the decedent and the executor at KeyBank. Decedent's savings accounts were in his name alone, at Ulster Savings Bank and MidHudson Valley Credit Union.
The executor testified that the $50,000 transfer was also accomplished by check. The KeyBank records indicate that the check was deposited at the branch on May 26, 2017, the day his father died. The transfer was not credited to the executor's account on that date. The Court has not been provided with a record of when the $50,000 was actually credited to the executor's account, but it must have occurred after May 26th. This payment, too, reflects an incomplete gift and must be reversed by the executor's payment to the estate in this amount.
Even if the checks had been "delivered" by being deposited and credited to the executor's personal account before the decedent's death, the executor has not met the burden of proving that his father was possessed of donative intent when the putative checks were signed (Mirvish v. Mott, 18 N.Y.3d 510, 518 [2012]). When, as here, the donee claims "title to property through a gift inter vivos as against the estate of a decedent," the clear and convincing standard of proof must be supported by evidence of "great probative force" (Estate of Kennedy, 36 A.D.2d 549, 550 [3d Dept 1971]). At trial, the executor had the opportunity to meet the elevated burden of proof as to donative intent, but offered nothing other than say it was his father's desire to make gifts to him for the renovation of the old farm house and to compensate him for his care-giving. No details were offered as to the manner, place or time in which his father expressed the desire to make these gifts. Nor did the executor describe any renovation work he performed or detail the extent and nature of his caregiving responsibilities. The executor's sister, MaryEllen Van Gordon, who he claimed assisted in the transfer of funds to him, was not called upon to testify.
The transfers themselves were apparently accomplished with only minimal involvement from the decedent: prepared in the final 5 days of decedent's life, the executor drafted personal checks to himself for $45,000 and $50,000, both from decedent's bank accounts. His father signed the checks.
In the absence of proof as to decedent's role in the transfer - and his donative intent -- the Court can only conclude that they were completed "not at decedent's direction, but on [the executor's] own initiative" (Estate of Magacs, 227 A.D.2d 760, 762 [3d Dept 1996]).
The Court therefore finds that the $95,000 transferred to the executor from his father's accounts were incomplete gifts at best. The proceeds of these transactions are estate assets and must be returned by the executor to the estate, with interest at the rate of 3 percent per annum from the decedent's date of death.
The objectants argue that the fiduciary engaged in self-dealing by occupying the farm continuously since his father's death at the expense of the estate. During the same period, the objectants contend, he permitted his son and his girlfriend to run a business on the farm known as "Oakley Family Farm". They raised livestock and poultry on the farm, advertised their products (various cuts of beef, eggs and poultry) through Instagram, Facebook and other social media sites, and ran a booth selling their products at various farmers markets, all under the name Oakley Family Farm. Despite the seemingly successful operation of this business on the farm for several years, no income was reported to the estate, nor was any rent or operating expenses paid for its use.
The Court acknowledges that as a tenant in common with the other beneficiaries, the executor enjoyed the right to use and occupy the premises without payment of rent because he did not exclude his co-tenants from the exercise of similar rights (Jemzura v. Jemzura, 36 N.Y.2d 496, 503 [1975]). He also maintained the farm and made repairs. However, the right to reside in the decedent's home rent-free does not absolve the occupying executor from his obligation, as fiduciary, to treat all beneficiaries equally (Estate of Muller, 24 N.Y.2d 336, 341 [1969]). He used estate funds to pay a portion of his own housing expenses, without subsidizing the housing expenses of his co-tenant/beneficiaries in a similar fashion. The Court finds that the use of estate funds for this purpose constitutes impermissible self-dealing (Estate of Bainbridge, 82 Misc.2d 895 [Sur Ct Nassau Cty 1975]; Estate of Helen A. Solari, 2000 NYU LEXIS 1915 [Sur Bx Cty 2000]); see also In re Draaser's Estate, 81 BYS2d 648 [Sur Ct Quens Cty 1948](it is "primary that no fiduciary will be permitted to use his deputed authority for the advancement of his personal ends").
Executor therefore incurred a liability for the reasonable value of his use and occupation of the premises to the extent that his expenses were paid by the estate. The unpaid administration on Schedule C-l include monies the executor paid for several oxygen tanks used for farm operations and electric service for the farmhouse and shed: these are not properly chargeable to the estate and should be stricken from Schedule C-l. The executor is also seeking reimbursement for utility charges totaling $1,517.89 for the period January 2019 to the end of August 2020: reimbursement is denied and this expense shall be removed from Schedule C-l. He is also to pay to the estate the sum of $1,889 plus interest at the rate of 3 percent per annum, which represents the insurance premiums paid by the estate on his behalf. In contrast, the Court finds the expense attributable to replacement of a well pump and associated costs are a proper expense of administration and should be reimbursed to the executor.
NEGLIGENCE. The executor first received $22,350.49 in quarterly dividend checks in 2017, 2018 and 2019. The checks - 25 in all - represented dividends on decedent's stocks in IBM and Prudential. They were deposited after the accounting period ended in September 2020 because, as the executor testified, he had "mislaid" them when they were first received and he had to obtain replacement checks. It apparently took him 3 years to realize the checks were missing. At least one check, dating back to 2017, found its way to the NYS Office of Unclaimed Funds before the executor could seek its reissuance. At the time of the accounting, the executor had taken steps to claim it.
It was also gross negligence on the executor's part to fail to monitor decedent's mail and "mislay" $22,350.49 in quarterly dividend checks, delaying their deposit into the estate by up to 3 years. The Court finds that an executor who "mislays" 25 such mailings and then fails to do anything about it for up to 3 years has willfully violated his fiduciary duty to marshall assets (Matter of Berlin, 135 Ad 3d 746 [2d Dept 2016]). The executor will be personally liable for interest at the rate of 3 percent per annum for the delayed deposit, accruing from the issuance date of the original check to the date of deposit.
The executor also put off paying for homeowner's insurance for nearly 3 years after his father's death. This, too, was negligence and a violation of the basic fiduciary duty to secure the assets of the estate from the date of the death of the decedent (Estate of Donner, 82 N.Y.2d 574, 584 [1983]).
The objectants claim, with justification, that the executor's failure to promptly marshall and liquidate the IBM and Prudential stock left the estate vulnerable to the vagaries of the stock market. The IBM and Prudential stocks date of death values were $151.73 and $104.86, respectively. When the stocks were sold, over 3 years later, IBM was trading at $123.31 per share and Prudential was trading at $67.77 per share. The combined loss in value reported on Schedule B was nearly $34,000.
If a baseline date for damages is to be determined, it would have to be the date the executor was appointed and first empowered to sell the stock: October 5, 2018.
The objectant bears the affirmative burden of proof of actual damages sustained by the estate by reason of the fiduciary's wrongdoing (Matter of Newhoff, 107 Misc.2d 589 [Sur Ct Nassau Cty 1980] affd 107 A.D.2d 417). To assess damages in cases like this, a court must determine the date when the fiduciary should reasonably have determined to sell the stock under the prudent investor guidelines of EPTL ll-2.3[b](3)[D] (see Estate of Gilas, 1998 NYU LEXIS 7515 [Sur Ct Nassau Cty 1998] for Surrogate Radigan's extensive discussion on this subject).
During years 2018-2020, the stock market experienced volatility. The IBM and Prudential stock were not immune to the historic highs and lows of that period.
The executor admitted that he didn't even check the stock prices until August 2020, two years after his appointment. Again, this willful disregard of his duties to manage the estate is negligence.
The executor is undoubtedly responsible for some loss in stock value. The problem is that the objectants have not given the Court the facts it needs to determine the date by which the executor should reasonably be expected to have sold the stock. Given the wild fluctuations in the stock values during the period in question, and in the absence of any proofs offered by the objectants as to the date the executor could reasonably have been expected to act, the Court simply cannot determine the extent of the actual damages arising from the executor's misconduct (Matter of HSBC Bank USA (Ely), 37 Misc.3d 875, 879-880 [Sur Ct Erie Cty 2012]).
The objectants having failed to address this aspect of the executor's negligence with the specificity required to determine the extent of losses unreasonably sustained, this branch of the objections is dismissed.
The executor's misconduct is more easily identified and quantified with respect to his failure to pay expenses associated with his use and occupancy of the farm. The estate had ample cash to apply to the costs of administration, so it was negligence, for example, for the executor to fail to pay real estate taxes on time. However, the executor paid the delinquencies and interest, which amounted to $856.22, and has waived his claim for reimbursement from the estate. The objections on this point are therefore dismissed.
The objectants also allege the executor failed to file any individual or estate tax returns, exposing the estate to penalties and interest. The Court is advised that some tax returns were filed after the closing date on the accounting schedules. The Court directs that $25,000 be held back from distribution to pay these taxes, plus interest and penalties thereon. The executor will be personally liable for the aggregate penalties and interest imposed by state and federal taxing authorities attributable to the period beginning with the executor's appointment and ending with the date of payment.
Finally, $23,552.12 in life insurance benefits went unclaimed by the executor until June 2020, nearly 3 years after decedent's death. The executor shall be personally liable for interest at the rate of 3 percent per annum from the date of death to receipt of the insurance proceeds.
ROWLANDS CLAIM. Objectant Kathleen Roland seeks specific performance of an oral agreement made among Kathleen, her husband Frederick and the decedent. Decedent's mother, Dorothy Oakley, conveyed a 1-acre parcel from the farm to Kathleen and Roland in 1985, where they continue to reside. When Dorothy passed away in 1989, decedent inherited the farm and the "back yonder".
Kathleen alleges that in May 2016, decedent made an oral offer to convey to Kathleen and Frederick an additional 6.35 acres adjacent to their one-acre parcel. In return, Kathleen and Frederick were to pay all surveying costs, filing fees and any other expenses required to effect the transfer. Later that month, the three parties signed a subdivision/lot line adjustment application at the offices of a local bank (the executor drove his father there). The Rowlands then hired and paid civil engineers and land surveyors to file and prosecute the lot line application and develop a plat with the proposed lot line adjustment.
The decedent and the Rowlands had been talking about the transfer of the additional acreage for about 35 years, according to the executor's witness, William Oakley, who termed his sister's efforts to enforce the agreement as "too late."
Decedent signed the plat in October 2016, together with Kathleen and Frederick. The plat was then submitted for approval to the local Town Board. It was approved in June 2017 and filed in the Ulster County Clerk's Office a few weeks after decedent's death. The final step of the transfer, execution of a deed transferring the 6.35 acres by deed to Kathleen and Frederick, was not accomplished. In the Court's experience, it is customary to await the filing of the plat before drafting a deed, so that the verbal description in the deed can include the filing number of the plat.
Following their father's death, Kathleen Rowland asked the executor to sign the deed effecting the transfer, but he refused. A verified claim was later filed by Kathleen for specific performance of the oral agreement or $74,000 in damages in the alternative.
The Statute of Frauds (GOL 5-703[2]) renders void any contract for the sale of real property "unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged" (GOL 5-703[4]). Where there has been part performance, however, a court of equity may compel specific performance of the agreement (Sivos v. Eppich, 78 A.D.3d 1360, 1361 [3d Dept 2010], citing GOL 5-703[4]).
The doctrine of part performance, which "take[s] the contract out of the Statute of Frauds" (McDermott v. Town of Goshen, 207 A.D.2d 612, 614 [3d Dept 1994]), may be invoked only if the acts of the party seeking to enforce the contact are "unequivocally referable" to the alleged contract (Anostario v Vicinanzo, 59 N.Y.2d 662, 664 [1983], citations omitted). The acts invoked must be such that they are "unintelligible or at least extraordinary" in the absence of an underlying oral agreement (Burns v McCormick, 233 NY 230, 232 [1922]).
A contract inferred from the acts of the parties is "just as binding as an express contract arising from declared intention, since in the law there is no distinction between agreements made by words and those made by conduct" (Jemzura v. Jemzura, 36 N.Y.2d 496, [1975]). Here, the conduct of the Rowlands is unambiguous, as are the acts of the decedent, who was actively involved in the process of obtaining the necessary lot line approvals. The Rowlands, for their part, hired and paid an engineer and surveyor, filed applications with the Town and later the plat with the County (both signed by the decedent). All of these are acts unequivocably referable to the consummation of the decedent's agreement to convey. In the words of Justice Cardozo, the conduct of the Rowlands in paying the expenses of the subdivision, preparing and filing the necessary documents and then filing the map with the County "is itself the symptom of a promise that a conveyance will be made" (Burns v. McCormick, 233 NY at 233).
The Court finds that the claimant's acts establish part performance on her part and on the part of the promisor, the decedent, for purposes of GOL 5-703(4). As a result, the claimant is entitled to specific performance of the decedent's oral agreement to convey the 6.35 acres to her and her husband.
REMOVAL OF FIDUCIARY. It is well settled that "a decedent's choice of executor should be given great deference and not disregarded unless that executor is not legally qualified to act as a fiduciary" (Matter of Palma, 40 A.D.3d 1157, 1158 [3d Dept 2007]). A court may nevertheless order the removal of a fiduciary if he or she has "wasted the assets of the estate or has otherwise improvidently managed or injured the property committed to his [or her] charge" (Matter of Giaimo, 73 Misc.2d 130, 133 [Sur Ct Bx Cty 1972], affd 41 A.D.2d 600[1973]).
The executor did not manage the estate's assets in any way, shape or form until the objectants compelled him to. Prior to 2020, he had made no effort to insure the farm or even to take steps to retain, much less deposit the dividend checks he received in the mail. It was only after the objectants initiated a proceeding in this Court that he took steps to obtain replacement checks, insure the farm, collect insurance policy proceeds or even to file income tax returns. Prior to August 2020, he did not even bestir himself to check the market value of the IBM and Prudential stocks.
In his testimony before the Court, the executor made clear that he either did not understand what his duties were as a fiduciary or, more likely, simply did not care. Through that testimony and through the accounting itself, he has conceded without explanation or excuse every point on which objections are made. As a result, the Court is not obliged to conduct a separate hearing on the executor's misconduct. It has been amply proved by his own words and by undisputed facts (Matter of Duke, 87 N.Y.2d 465, 472 [1996]; see, also, Matter of Palma, 40 A.D.3d at 1159.
The Court finds that the executor engaged in serious misconduct and willful neglect of the estate's assets. He is hereby removed and the letters testamentary appointed him are revoked. He shall receive no commission or other benefit from his abbreviated and flawed service as fiduciary (Estate of Farone, 162 A.D.2d 828 [3d Dept 1990](denial of commissions appropriate only when the fiduciary is "derelict in the performance of [their] duties," guilty of "complete indifference" or otherwise acts improperly" citations omitted). The attorneys fees the executor incurred in unsuccessfully defending himself against the objections were for his benefit alone and are not compensable as expenses of the estate, but shall be charged to him personally (Estate of Gates, 120 A.D.2d 890 [3d Dept 1986], c/t/ng Matter of Delia Chiesa, 23 A.D.2d 562 [2d Dept 1965]).
APPLICATION OF PRO TANTO RULE; ALLOCATION OF OBJECTANTS' LEGAL FEES. Objectants invoke the pro tanto rule, seeking to have $30,000 of the "surcharge" levied against executor allocated to them. The pro tanto rule is an equitable principal derived from common law (Matter of Hyde, 32 Misc.3d 661, 666 [Sur Ct Warren Cty 2011]). It applies when beneficiaries do not unanimously join in filing objections. By limiting the amount of the surcharge to the financial interest of the objectants, the pro tanto rule insures that only the objecting beneficiaries, who have invested time and money in their claims, will benefit from the surcharge.
Application of the pro tanto rule is not appropriate in these proceedings. The $95,000 to be returned to the estate is not a surcharge. These are estate assets which are to be restored to the estate. All residuary beneficiaries should share in the monies returned to the estate by reason of the executor's prior defalcation (Accounting of Lunnin, 2012 NYU LEXIS 1891 [Sur Ct NYCty2012]).
The proceedings brought by the objectants were necessitated by and attributable to the improper conduct of the executor (Matter of Rose BB, 35 A.D.3d 1044 [3d Dept 2006]). Their attorney's services benefitted the estate by revealing the $95,000 in payments improperly received by the executor. This transfer was not referenced in the accounting. Their proceedings impelled the executor to marshall the assets and undertake to administer the estate. The legal fees incurred by the objectants in this proceeding shall therefore be paid by the estate which benefited from the legal services pursuant to SCPA 2110.
It is, therefore, ORDERED and DECREED, the executor is hereby removed by reason of misconduct; the letters testamentary dated October 5, 2015 appointing him are hereby revoked. He shall, within 30 days of the date hereof:
a. Remit to the estate the $95,000 received by him after the decedent's death plus interest at 3 percent;
b. Vacate the farm, removing all his personal property therefrom. The tractor, purchased with the decedent's funds, is an estate asset and shall remain on the farm.
c. File with the Court an affidavit bringing his account to date, which shall reflect the revisions hereby, including, without limitation, a hold-back of $25,000 for income taxes and penalties and interest thereon; and interest calculated on $95,000 in improper payments to the executor, delays in marshalling assets, and on amounts paid to insure, provide utility services or improve the farm property during executor's use and occupancy; and it is
FURTHER ORDERED and DECREED, that the tractor be added to Schedules A and G as an asset of the estate; and it is
FURTHER ORDERED and DECREED, the attorney's fees incurred by the executor in defending him against the objections shall be paid by him personally and removed from Schedule C-l; and it is
FURTHER ORDERED and DECREED, the attorney's fee incurred by the objectants in prosecuting their claims against the executor shall be paid by the estate as an expense of administration and. shall be added to Schedule C-l; and it is
FURTHER ORDERED and DECREED, the objectants shall be appointed co-administrators eta upon their filing their oaths and designation. They shall serve without bond and will file a petition for judicial settlement of accounts prior to making final distributions; and it is
FURTHER ORDERED and DECREED, upon the final accounting of the adminstrators eta, the executor's distribution shall be reduced by the following:
• $1,889 for insurance premiums paid during the executor's use and occupancy of the farm, with interest at 3 percent.
• Interest at 3 percent on $23,552.12 in insurance payouts from the date of executor's appointment to the date of receipt
• Interest at 3 percent on $ 22, 350.49 dividend checks from the date of issuance to the date of receipt.
This constitutes the decision/order of the Court. All papers, including this decision/order, are hereby entered and filed with the Clerk of the Surrogate's Court. Counsel is not relieved from the applicable provisions of CPLR Section 2220 relating to service and notice of entry.
Papers Considered:
1. Probate Petition filed June 26, 2018
2. Last Will and Testament of Kenneth Clyde Oakley dated March 28, 2006
3. Petition to Compel Fiduciary to Account filed October 17, 2019
4. Verified Claim by Kathleen Roland dated July 16, 2020
5. Petition for Judicial Settlement of Interim Account filed October 13, 2020
6. Scheduling Orders for Examination of Executor April 23, 2021 and April 27, 2021
7. Statement of Issues by Sean J. Denvir, Esq. filed September 20, 2021.
8. Memorandum of Law in support of Verified Claim by Sean J. Denvir, Esq. filed October 1, 2021.
9. Objections to Accounting filed May 21, 2021
10. Summation: Request for Relief by Sean J. Denvir, Esq. filed October 4, 2021.
11. Summation by Peter F. Matera, Esq. filed October 8, 2021.