Matter of Kuberka

[*1] Matter of Kuberka 2008 NY Slip Op 52599(U) [22 Misc 3d 1104(A)] Decided on November 3, 2008 Sur Ct, Erie County Howe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2008
Sur Ct, Erie County

In the Matter of the Judicial Settlement of the Accounts of Acea M. Mosey, as Administrator of the Estate of Richard L. Kuberka, Deceased.



2006-4318/A



ACEA M. MOSEY, ESQ.

Erie County Public Administrator

Thomas F. Hewner, Esq., of Counsel

KWIECIAK, KWIECIAK & KWIECIAK, LLP

Attorneys for Paternal Claimants Norbert J. Kuberka,

Geraldine Kowalewski, Gloria Czerwinski and Patricia Okulewicz

Marianna Moskal, Esq., of Counsel

HAMBURGER, WEINSCHENK and FISHER

Attorneys for Paternal Claimants Eugene Kuberka, Jane Pilecki,

Evelyn M. Brzezinski, Lorraine C. Uzdygan and Sidney J. Wesley

John C. Fisher, Esq., of Counsel

MICHAEL J. STACHOWSKI, ESQ.

Attorney for Maternal Claimants

Dolores Jakubczak and Alfred Stolinski

ROGER B. SIMON, ESQ.

Guardian ad Litem for Unknown Heirs

ANDREW M. CUOMO, ESQ., NEW YORK STATE ATTORNEY GENERAL

Cited for Unknown Heirs

William D. Maldovan, Esq., of Counsel

Barbara Howe, J.

In this proceeding to judicially settle the account of the Public Administrator, eleven alleged first cousins of the decedent, Richard L. Kuberka ("Richard"), claim to be his only distributees, thus entitling them to inherit his estate pursuant to EPTL 4-1.1(a)(6).

Richard died intestate at the age of 69 on October 18, 2006 in Buffalo, New York. His neighbors had contacted the Public Administrator to supply what little information they knew about Richard's family. The neighbors were aware of only two aunts who, years ago, used to take Richard out for Sunday dinner, but they believed that the two aunts had died. The neighbors also reported that Richard had frequently asked them to take him to the cemetery to visit the graves of his parents and still-born sister.

Attorneys Henry Wick ("Henry") and Michael Stachowski[FN1] ("Michael") came forward with information that Richard had two living maternal cousins, whose names were identified in local Surrogate Court records, and these cousins[FN2] were noticed in the administration proceeding.

Since the apparent class of Richard's distributees was cousins on only one side, the Public Administrator was the only person who had statutory authority to be appointed as administrator of this estate, and letters were then issued to her on November 8, 2006.

During the administration of this estate, nine alleged paternal cousins appeared who, together with the two alleged maternal cousins, now lay claim to this net estate of approximately $265,000.

A kinship hearing was held before a Court Attorney-Referee to hear and report with respect to the issues which I now must decide. At the hearing, counsel for all parties consented to the appointment of the referee, waived the filing of a written referee report, and consented that I might determine the issues based on the testimony and documentary evidence adduced (see, SCPA 506 [6][c]).

At this evidentiary hearing, two witnesses testified for the maternal claimants, and three witnesses testified on behalf of the paternal claimants.

I now find and decide as follows.

In kinship proceedings, claimants have the burden of proving kinship (see, e.g., Matter of Flavin, 15 Misc 3d 1104A [2007] and Matter of Morris, 277 AD 211 [1950]), and must establish that they are decedent's closest surviving blood relatives as defined in EPTL 4-1.1 (see, Matter of Dinzey, NYLJ, June 9, 2003, at 33, col 4). This burden is met by a preponderance of evidence (Matter of Whelan, 93 AD2d 891[1983]). For kinship to be established to the satisfaction of the Court, claimants must make an evidentiary showing (1) how each is related to decedent, and (2) that no other persons of the same or a nearer degree of relationship survived 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 18, col 6).

"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]; see, also, Matter of Lelito, 20 Misc 3d 1120A [2008]). "When persons of the nearest [*2]degree of relationship establish [their] standing, those more remote are excluded (Matter of Henesey, 3 Misc 2d 660, 662 [1956], affd 3 AD2d 834 [1957]). One 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, supra).

The proof establishes that Richard was born on December 4, 1936 in Buffalo, New York. He never married and had no issue.[FN3] Richard's father, Leon Kuberka ("Leon"), died on June 15, 1990, and his mother, Helen Stolinski Kuberka ("Helen"), died less than two months later. They were married only once, to each other. Although some people believed that Richard was Leon and Helen's only child,[FN4] others knew that he had a sibling who died at birth.[FN5]

Therefore, I find that the classes of spouse, issue, parents, and siblings, or their issue, are closed.

Maternal Family

Henry gave the predominant oral testimony about Richard's maternal family from personal knowledge. Henry's wife was a grand-niece of Richard's maternal grandmother, Victoria Kryszewski[FN6] Stolinski ("Victoria"). By virtue of his wife's relationship to this family, Henry had many occasions over the years to socialize with Richard's family, and, later, he had attended most of their wakes or funerals. He was a rich source of information about their lives, some of it colorful, and I find that Henry was an eminently credible[FN7] disinterested witness.

"Aunt Vicky," as Henry called Victoria, who was the "matriarch of the family," had been married once in her life to Anthony Stolinski[FN8] ("Anthony"). Victoria, born in Buffalo, died widowed in 1979 at the age of 91. Anthony died in Buffalo circa 1940, according to the testimony of his granddaughter, Dolores, who was a small child at that time. Although no corroborating death certificate was produced, he would be well in excess of 100 years old today, so his death can be presumed (Young v Shulenberg, 165 NY 385 [1901]). [*3]

Victoria and Anthony had six children:[FN9] one son, Henry S, and five daughters: Dorris, Cecilia, Helen, Eleanor and Florence.

Dorris used the abbreviated surname, Stahl, and died in 1975, single and without issue. She had lived with her mother, Victoria, her whole life and had been employed as a waitress at W.T. Grant Company and, later, as an inspector at the Trico plant.

Henry S married once, to Alfreda, and they had two children: Dolores and Alfred, both claimants in this proceeding. Henry S died in 1987.

Cecilia married late in life to a man named "Slawatycki" and never had issue. After her husband's death, she shared an apartment with her sister, Eleanor, which was upstairs from the apartment where her other sister, Florence, lived with her husband. Cecilia died in 1996,[FN10] leaving as distributees her sisters, Florence and Eleanor; a nephew Richard; and her brother Henry's children, Dolores and Alfred.

Eleanor had only one child, a son, Daniel Stahl ("Daniel"), and had married a man named "Hager." Eleanor died in 1997,[FN11] and Daniel predeceased Richard in 2000.

Florence married a man named "Barton," and they bought a two-family home on Gabrielle Drive in Cheektowaga, New York, where her two sisters, Eleanor and Cecilia, came to live after the deaths of their husbands. Florence had no issue, and she died in 2003. Henry was the attorney for her estate,[FN12] and Richard, Alfred, Dolores, and Daniel's daughter, Cynthia,[FN13] were listed as her distributees in the probate petition.

Helen, Richard's mother, died in 1990, which was discussed previously.

Therefore, I find the proof sufficient to establish that the maternal side of Richard's family tree is closed, and Richard's two maternal first cousins, Alfred and Dolores, having proven their status, are entitled to share equally in one-half of Richard's net estate.

Paternal Family

Three witnesses testified about Richard's paternal family: Evelyn Brzezinski ("Evelyn"), Norbert Kuberka ("Norbert"), and Gloria Czerwinski ("Gloria"), all of whom are claimants[FN14] in this proceeding. [*4]

They testified credibly and, for the most part,[FN15] consistently about their ancestors common to Richard. Hedwig Molus ("Hedwig")[FN16] and Andrew Kuberka ("Andrew") were their grandparents. Norbert believed that they emigrated to the United States by boat from the Port of Bremen around 1902 or 1903, with five of their children: Valentine (known as "Willy"), Madeline (known as "Margaret"), Catherine, John and Mary. Family members had told him that this was his grandparents only marriage and that no children had been left behind in Poland, where he thought his parents had lived. Evelyn thought her grandparents were born "between Poland and Germany ... in Krakow or someplace." Gloria believed that her mother, Mary[FN17], was the youngest child to be brought to the United States by her grandparents when they arrived in approximately 1907.

All three claimants testified that a total of eight children were born to Andrew and Hedwig, with Stephen, Leon and Helen Wesley ("Helen W") having been subsequently born in the United States.

Their extended family was predominantly based in Buffalo, and the aunts, uncles and cousins socialized and knew each other well. Gloria fondly remembered her grandmother Hedwig, who, when Gloria was a small child, called for her from her deathbed for a last kiss. Norbert recalled much detailed information that he had learned over the years about his family; he even remembered attending his grandfather Andrew's funeral. Norbert remembered Andrew as an "interesting" but formidable man who sat in a "big chair ... with a cane, and kind of order[ed] people around." Norbert attributed "that sergeant-like mentality" to Andrew's years in Prussia as a "top sergeant" for a landowner/lord. He believed that his grandparents emigrated to escape cultural and religious oppression.

Evelyn also had specific knowledge about Richard's paternal family members and elaborated about who they were and how many were in a particular family. She related details about some individuals that other witnesses had not revealed.[FN18]

The witnesses identified these following relatives as Hedwig and Andrew's sole issue:

1. Valentine, who died in 1942 and had five children: Eugene and Jane, now living, and Edwin, Thaddeus and Alfred K, having predeceased;

2. Madeline, who died in 1977 and had two children: Irene and Dorothy, both having [*5]predeceased;

3. John, who died in 1964 and had two children: Norbert, who is living, and Harry, who has predeceased;

4. Catherine, who died in 1997 and had three children: Lorraine and Evelyn, who are living, and Richard B, who has predeceased;

5. Stephen, who died in 1991 and had two daughters, Geraldine, who is living, and Melvina, who has predeceased;

6. Mary, who died in 1997 and had three daughters: Patricia and Gloria, who are living, and Grace, who has predeceased;

7. Helen W, who died in 1995 and has one child[FN19] living, Sidney; and

8. Leon, Richard's father.

All nine living children of these aunts and uncles listed above are claimants in this proceeding. The documentary evidence submitted to corroborate all nine claimants' status does satisfy their burden of proof in this regard. However, corroborating documentary evidence to close the classes of paternal aunts, uncles and cousins is inadequate and does not sustain their burden for reasons which I will now address.

The proof required in kinship proceedings has been well-established over the years (2 Harris 5th, NY Estates: Probate Administration & Litigation, §21:19). Evidence of pedigree takes the form of oral testimony, with documentary evidence required to corroborate it (6 Warren's Heaton, Surrogate's Court Practice, §74:17 [2][b] [iii] at 74-57, [7th ed]; Matter of Logue, NYLJ, June 19, 1998, at 30, col 3; Matter of Layh, 55 Misc 2d 92 [1967]; Matter of Pacosz, Surr Ct, Erie County, October 17, 2008, Howe, J., file No. 2003-2413).

The oral testimony oftentimes comes from the claimants themselves, which can be admissible under the pedigree exception to the hearsay rule (see, Prince, Richardson on Evidence, §8-901 et seq. [Farrell, 2005]). However, one commentator has opined that, although it is always advisable for claimants to testify, "[d]isinterested witnesses are often viewed as possessing the highest degree of credibility," and many practitioners have them open their case to confirm various aspects of the family tree (Adler, David N., Kinship Proceedings: Proving the Family Tree, NYS Bar Association Journal, June 2005, pp 42, 46). This disinterested testimony oftentimes is given by a professional genealogist, who attests to the diligence of the search for heirs and for the kinship documents which will ultimately establish the claimant's relationship to the decedent (Matter of Wahlquist, NYLJ, May 21, 2002 at 23, col 2; Matter of Walsh, NYLJ, September 19, 2008, at 37, col 6; Matter of Schweda, NYLJ, February 28, 2006, at 26, col 2).

The corroborating documents generally consist of public documents: such as birth, death and marriage certificates, United States census and naturalization records, and court records; "semi-public" documents: such as church and cemetery records; foreign language documents; and private documents: such as family letters, inscriptions in a family bible, etc. (6 Warren's Heaton, supra; Adler, Kinship Proceedings: Proving the Family Tree, supra, at 45; Matter of Cosgrove, NYLJ, April 22, 1999, at 33, col 2).

It is this combination of oral and documentary proof that establishes not only claimant's status, but that the classes are closed (Matter of Wood, 170 Misc 877 [1939]. "[T]he pieces of [*6]evidence fit together in a perfect picture, like a mosaic, when status is established" (Matter of Hayden, 176 Misc 1078, 1080 [1941]).

Indeed, when a sufficient combination of oral testimony, from both interested and disinterested witnesses, and numerous corroborating documents of varying types has been adduced, courts have found that claimants did establish their kinship with decedent and allowed estate distributions to be made to them, even in cases where less than three years has elapsed from decedent's death (Matter of Helfand, NYLJ, March 26, 2003, at 26, col 3; see, also, Matter of Willutzki, NYLJ, July 13, 2004, at 31, col 6). However, where this proof has been found insufficient, courts have declined to order a distribution to claimants prior to this three year period (Matter of Mason, NYLJ, August 6, 2008, at 36, col 5; Matter of Levine, NYLJ, August 29, 2005, at 30, col 2).

With respect to the kinship proof on Richard's paternal side, while the three claimants' testimony was generally reliable as to what they knew about their family, testimony from one or more disinterested witnesses[FN20] may have made the oral proof more compelling.

However, the documentary proof submitted to corroborate the testimony for closure of the classes of aunts, uncles and cousins, is woefully inadequate. Most of the documentary submissions by the paternal claimants were birth and death certificates, together with holy cards, which verify the dates of birth and death of the parties, and obituaries, which were ostensibly offered to show all of their surviving relatives.

In order to close the class of paternal aunts and uncles, the number of children born to the grandparents, Hedwig and Andrew, must first be proven. The only documentary proof[FN21] offered in this regard was Andrew's 1961 Buffalo obituary which identifies the eight children listed in the family tree. No primary documents, no estate proceedings, no census records, no ships logs, no immigration records, no foreign documents,[FN22] or the like, were presented, all of which could have helped the "pieces of evidence fit together in a perfect picture" (Matter of Hayden, supra).

Further proof in this regard is even more important because collateral information[FN23] contained in Stephen's birth certificate identifies him as the seventh child born alive to Hedwig, although, on the family tree, he is listed as the sixth child born. Two other children are also listed on this certificate as deceased, which would suggest there may have been eleven children, instead of eight, born to her.

In cases where common ancestors were born in a foreign country and emigrated to the United [*7]States, documentation from that foreign country, proof of a genealogical search to verify the ancestors' dates of birth, marriage and the number of their issue, or other such proof is critical, not only to establish the claimant's status, but to close the class as well. Otherwise, the Court cannot be assured that other family members of the same or prior classes do not exist in that foreign country or elsewhere (See, e.g., Matter of Horvath, NYLJ, September 25, 1991, at 30, col 6).

Similarly, the only documentary proof offered to support the oral testimony about the size and composition of many of the seven[FN24] aunts' and uncles' families, so that the class of cousins may be closed, are local obituaries.

While obituaries can be admitted into evidence as part of the documentary proof in a kinship proceeding as pedigree exceptions to the hearsay rule (Matter of Flavin, supra), it is for the finder of fact to determine what weight it will ultimately accord to the information contained therein (id.). Here, I give them only slight weight since many of them do not identify deceased family members by name, only by relationship, e.g., "predeceased brothers and sisters." Unlike the proof submitted for Richard's maternal side, where local estate proceedings consistently recited the same family members, no similar documents have been produced to buttress the hearsay declarations contained in the obituaries submitted.

In and of themselves, I do not find the obituaries conclusive to establish the size and identity of the members of the classes of paternal aunts, uncles and cousins.

Therefore, I find that insufficient documentary evidence has been adduced to establish that there are no other parties who are in a closer or equal degree of kinship to Richard on his paternal side. Thus, the paternal claimants have not met their burden of proving that the classes of paternal aunts, uncles and cousins have been closed.

Furthermore, since three years have not elapsed from Richard's death, they cannot rely on the ameliorative provisions of SCPA §2225 to reduce the level of proof required in this proceeding. Consequently, no distribution to the nine paternal claimants can be made at this time.

In the event that the paternal claimants are able to present additional competent evidence, a motion for such purpose can be made. If no such motion is made on or before December 19, 2008, one-half of the net estate, after payments of commissions, attorney's fee and guardian ad litem's fee shall be paid to the New York State Comptroller for the benefit of decedent's unknown paternal heirs.

All guardian ad litem and other fee applications shall be filed with this Court and served on all counsel and on the Attorney General's office on or before November 21, 2008, and those served will have until December 2, 2008, to serve and file any responding papers, after which I shall decide the fee requests on the papers submitted.

This decision shall constitute the Order of this Court and no other or further order shall be required. [*8]

DATED:BUFFALO, NEW YORK

November 3, 2008

BARBARA HOWE

Surrogate Judge Footnotes

Footnote 1:Michael had been married to Dolores's daughter (see footnote below) for many years.

Footnote 2:These cousins were Dolores Jakubczak ("Dolores") and Alfred Stolinski ("Alfred").

Footnote 3:Although all testimony was consistent in this regard, I give great weight to the disinterested testimony of Henry, who had represented Richard in various legal matters and had visited Richard's home, where he had lived with his parents his whole life.

Footnote 4:See maternal family tree signed by Alfred stating that Richard never had brothers or sisters.

Footnote 5:The sole distributee affidavit in Helen's Erie County Surrogate's Court file (#1990-4465) identifies Richard as Helen's sole living child, but states that she also had a daughter who was stillborn. This affidavit was sworn to by Florence Barton, Helen's sister. Similarly, paternal claimants, Evelyn Brzezinski and Norbert Kuberka, knew of this stillbirth.

Footnote 6:The testimony and various documents shows that the name "Kreske" was sometimes used as the abbreviated version of this name.

Footnote 7:Claimant Dolores was the other witness, who also testified credibly.

Footnote 8:The testimony and various documents show that the name "Stahl" was used sometimes as the abbreviated version of this name.

Footnote 9:These six would be Richard's maternal aunts and uncle, and Richard's mother. The corroborating documentary evidence were the local Surrogate Court proceedings for most of them, as well as primary documents such as death certificates..

Footnote 10:Her Erie County Surrogate's Court estate file is No. 1996-4078.

Footnote 11:Her Erie County Surrogate's Court estate file is No. 1997-1561.

Footnote 12:Her Erie County Surrogate's Court estate file is No. 2003-1166.

Footnote 13:Cynthia would be Richard's first cousin once removed, and, therefore, is not a party in this proceeding.

Footnote 14:Their testimony was admissible under the pedigree exception to the hearsay rule of evidence.

Footnote 15:See, e.g., discrepancies in dates of emigration to America, discussed below.

Footnote 16:Hedwig's name had variations in many of the documents submitted into evidence, from "Jadwiga Molik" to "Ida Molus."

Footnote 17:Mary's birth certificate is in evidence and shows that she was born in 1906 in Tarce, District of Jarotschin, which was part of Poland, although her birth certificate was translated from the German language.

Footnote 18:Evelyn testified that Helen W had a daughter named "Delphine," who died as a baby. Delphine is not listed on the family trees submitted into evidence, nor has any documentary submission been made to verify her birth and death. Norbert also knew of her death, but not her name. Evelyn also stated that her cousin Irene, Madeline's daughter, had lived in a nursing home with Evelyn's mother prior to her death.

Footnote 19:See footnote 18, where the death of her baby is discussed.

Footnote 20:For example, this testimony could have come from a genealogist attesting to a diligent search for local and foreign records to establish kinship.

Footnote 21:No documentary proof of any kind was offered for Richard's grandmother, Hedwig.

Footnote 22:See Matter of Lelito, supra, and Matter of Slawiak, Surr Ct, Erie County, July 31, 2008, Howe J., File No. 2004-1525/A, where I found the vast array of Polish records invaluable in the kinship determinations of those cases.

Footnote 23:I am considering this collateral fact not for its truth, but to show that it calls into question whether a diligent search has been conducted for all possible heirs, some of whom may live in Poland, as well as whether sufficient documentary proof has been submitted in this regard.

Footnote 24:Obituaries were supplied for Stephen, Madeline, Mary and Helen W. No documentary proof to establish the number and identity of uncles Valentine and John's, or aunt Catherine's, families were submitted. Estate proceedings identifying all distributees have been submitted for Richard's father, Leon (Erie County Surrogate's Court File No. 1990-4471), and Aunt Mary (Erie County Surrogate's Court File No. 1998-3158), where I find the proof sufficient with respect to their issue.