Matter of Clavin
Annotate this CaseDecided on August 28, 2009
Sur Ct, Bronx County
In the Matter of the Estate of Mary Clavin, Deceased.
2004-A/73
Oshrie Zak, Esq., for Bonnie S. Gould, Public Administrator, Bronx County
Martin Mohr, Esq., Guardian Ad Litem for unknown heirs
Azzolini & Benedetti, LLC, (Thomas J. Benedetti, Esq., of counsel) for objectant, Stella Mary Clavin Haslock
Michael H. Friedman, Esq., for objectants: William Boyce, Peter Boyce, Patricia Boyce, Kathleen Grant, Gloria Olexo, Donald Boyce and Michael Boyce
Lee L. Holzman, J.
In this proceeding to judicially settle the account of the Public Administrator, objections were first filed by six alleged paternal first cousins once removed who claim that they are the decedent's only distributees. In addition, the Public Administrator acknowledged a seventh paternal first cousin once removed who failed to appear in this proceeding. Thereafter, objections were interposed by Stella Mary Haslock (nee Calvin), who alleges that she is the decedent's niece and her sole distributee. The other objectants dispute that she has established her status as the decedent's niece. A kinship hearing was held before the court at which a guardian ad litem for unknown distributees and all of the objectants appeared.
At the hearing, numerous documents were introduced into evidence and there was testimony by four witnesses; namely, the decedent's second cousin, the alleged niece, Stella Haslock, a genealogist, and one of the alleged paternal first cousins once removed. To the extent that the alaleged niece and the other objectants were unable to locate certain documentary or other information they requested that, where necessary, the ameliorative provisions of SCPA 2225 be utilized in determining the distributees entitled to share in the net distributable estate.
At the conclusion of the hearing, the court adjourned the proceeding without date and without prejudice to the right of any party to submit additional proof and request a continuation of the [*2]hearing on notice to all other parties. Thereafter, the alleged niece offered a supplemental affidavit of the genealogist with an attachment; however, the paternal first cousins once removed object to that submission, which has been disregarded by the court. As no party requested a continuation of the hearing, it is deemed concluded.
The proof at trial demonstrates that the decedent died on December 13, 2003 at the age of 86, without any spouse or issue. The decedent was one of three children born to James and Alice Bridget Clavin (nee Hickey), both of whom predeceased her. The decedent had two brothers, Patrick and John; however, the last documentary evidence concerning the whereabouts of the decedent's brother John Clavin is his 1941 petition for naturalization, made when he was 20 years old. During trial, the genealogist reviewed her searches of birth, death, marriage and social security records and indexes, military, cemetery and surrogate's court records and resources, newspaper obituaries, interviews with more distant relatives and internet searches. She noted that when the decedent's maternal aunt died in 1968 in Bronx County, the decedent was appointed administrator of that aunt's estate and listed herself and her brother Patrick James Clavin as the only distributees. Despite her exhaustive searches and interviews with other distant relatives, the genealogist was unable to locate any additional information on the decedent's brother John Clavin, and concluded that all avenues to locate him were exhausted.
Utilizing the criteria used to determine whether a diligent search under SCPA 2225 has been made, including the size of the estate, the amount of time which has elapsed since any other possible distributees have been heard from, and the lack of any leads whatsoever as to their whereabouts, it is determined that an adequate and exhaustive search has been competed (Matter of Schrake, 129 Misc 2d 671 [1985]). Accordingly, it is concluded that the decedent's brother John Clavin predeceased the decedent, without issue.
It is essentially the position of the objecting cousins that the alleged niece has failed to meet her burden of proof; to wit, establishing that her father Patrick J. Clavin is the same Patrick J. Clavin that is the decedent's brother. Although the court does not find this contention to be valid, assuming, arguendo, that it is valid, the first cousins once removed would still not prevail on their objections because they have not offered an iota of proof to establish that the alleged niece's father was anyone other than the decedent's brother. In short, they have not met their burden of proof on the issue of excluding distributees of a closer degree of kisnhip.
The decedent's second cousin confirmed that the decedent's brother Patrick served in the military. The totality of the proof adduced establishes that the decedent's remaining brother, Patrick James Clavin, married Stella Catherine Toft in England in 1945, while he was stationed there at a US Air Force base while serving in the United States Armed Forces during World War II. During that marriage he had one child, the decedent's niece Stella Haslock, who was born in New York on September 25, 1946. The niece testified that her parents initially moved to New York where her mother was not able to "settle," and then they returned to the Manchester area in England where they had met but her father "couldn't settle," and eventually her parents separated no later than 1950. The marriage of Patrick James Clavin and Stella Toft was "dissolved" by the Manchester County Court of England, effective July 4, 1956.
According to the niece, upon her parents' separation her father returned to New York to live while she and her mother remained in England, but her father sent her holiday and birthday cards and Christmas presents "from as long as I can remember" up until the time of the formal dissolution of [*3]the marriage. This witness testified that she met the decedent in 1960 when the decedent stopped in Manchester, England while on a cruise, and the decedent sent the niece some gifts as well as photographs taken of them during that cruise trip. After her mother and stepfather died, the niece undertook a search for her father and contacted numerous agencies in the United States; however, she ultimately learned that he died on April 28, 1990, thereby predeceasing the decedent. The testimony of the niece was consistent with the other proof adduced and also supports her status as the decedent's sole distributee.
Contrary to the claims of the paternal first cousins once removed, the following documents admitted into evidence at trial, along with all of the testimony adduced clearly establish the status of the niece as the decedent's sole distributee: (1) the certified marriage certificate of Patrick J. Clavin and Stella K. Toft, listing James Clavin, the decedent's father, as the father of Patrick J. Clavin; (2) the birth certificate of the niece, listing September 25, 1946 as her date of birth and listing Patrick J. Clavin, age 29, as her father; and, (3) Mary Clavin, the decedent herein, is the informant on the death certificate of her brother, Patrick, and the death certificate indicates that he was 73 years of age on April 28, 1990, the date of his death, which is consistent with his having been 29 years of age when the decedent's niece was born in 1946; and, (4) the three marriage certificates for the niece, two of which were executed long before the commencement of this proceeding, all listing Patrick Clavin as her father.
Accordingly, the court concludes that the decedent's sole distributee is her niece, Stella Mary Haslock (nee Clavin), who is entitled to the entire net distributable estate (see EPTL 4-1.1 [a] [5]).
The Public Administrator shall file an affidavit bringing her account up to date and settle a decree directing distribution of the net distributable estate in accordance with this decision.
Settle decree.
SURROGATE
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