Matter of Perry

[*1] Matter of Perry 2009 NY Slip Op 52781(U) [29 Misc 3d 1221(A)] Decided on June 30, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2009
Sur Ct, Erie County

In the Matter of the Estate of Geraldine Perry, Deceased.



2006-0011/A



ACEA M. MOSEY, ESQ.

Erie County Public Administrator

Thomas F. Hewner, Esq., of Counsel

KATZ and BAEHRE

Attorney for the Estate of Helen Endres, Claimant

Jeffrey H. Katz, Esq., of Counsel

ROGER B. SIMON, ESQ.

Guardian ad litem for Unknown Heirs

ANDREW M. CUOMO, Attorney General

Cited for Unknown Heirs

William D. Maldovan, Esq., of Counsel

Barbara Howe, J.

This is a proceeding brought pursuant to SCPA 2225 on behalf of the Estate of Helen Endres ("Helen"), by her executor, Eugene Endres ("claimant"), for a determination that Helen is decedent Geraldine Perry's ("Geraldine") sole heir entitled to her estate.

This is the third hearing held giving claimant an opportunity to adduce evidence sufficient to establish Helen's standing as Geraldine's cousin and to prove that no parties exist in prior or equal classes of Geraldine's family. Claimant now believes that the oral and documentary proof cumulatively submitted allows the Court to find that "diligent and exhaustive efforts" have been made, and that no other distributee of Geraldine or class of her distributees exists other than those whose status is established in the record before the Court (SCPA 2225). A brief history of Geraldine's estate may be helpful to this current decision.

Geraldine died intestate on August 11, 2005, leaving a net estate of $271,000. During testimony at the first kinship hearing held on March 6, 2007, the name of a possible paternal [*2]aunt, "Thecla,"[FN1] emerged. Since this was a surprise revelation, and because no proof had been sought for Thecla or her heirs, I allowed claimant the opportunity to submit further proof on this issue, as well as to address "the dearth of proper corroborating documentary evidence ... [on] the issues of Helen's status and the closing of the cousin and any prior class ..." in my decision dated June 29, 2007.[FN2]

Claimant availed himself of the opportunity to do so, and a second hearing was held on January 29, 2008. The proof submitted at that time primarily addressed Thecla's existence and death, and in my memorandum and order dated March 25, 2008,[FN3] I found the evidence insufficient and inconsistent on the issues. Furthermore, I again stressed claimant's failure to produce, though given this second opportunity, competent documentary evidence to corroborate the testimony about all other classes of distributees who could take prior or equal to Helen. I then directed that Geraldine's net estate be paid to the New York State Comptroller's Office to be held for the benefit of Geraldine's unknown heirs. Prior to entry of a judicial settlement decree authorizing the transmittal of the funds to the Comptroller's Office, claimant brought the instant motion.

I then allowed claimant a third opportunity to produce additional proof, and a reopened kinship hearing was held on March 10, 2009, 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 third evidentiary hearing, two witnesses testified, Mark McGowan ("Mark") and Leon J. Kumor ("Leon").

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]). [*3]"When persons of the nearest 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).

Mark, a title abstracter and owner of a local land records research company, was well familiar with searching estate records in Erie County Surrogate's Court, and testified that he located eight estate files for various members of Geraldine's family.

With these estate proceedings, as well as several death certificates having been presented for other relatives, the evidence now establishes that Geraldine was married to Lionel Perry, who died in 1977. They had no issue. Her parents were Ellen M. Kopec ("Nellie") and Andrew J. Kopec ("Andrew"). Andrew died in 1958,[FN4] and Nellie died in 1965.[FN5] Three children were born to Andrew and Nellie: two daughters, Geraldine and Victoria, and a son, Callistus. Victoria and Callistus predeceased Geraldine leaving no issue. Victoria died in 1961,[FN6] and Callistus died in February 2005, a few months before Geraldine.

Therefore, I find the proof sufficient to establish that the classes of spouse, children, parents, and siblings or their issue are closed.

Maternal Family

Geraldine's maternal grandparents, Mary Ellen Buckley ("Mary Ellen") and John E. Buckley ("John") were born in the western New York area and lived here throughout their lives. John died in 1936,[FN7] survived by his wife, Mary Ellen, and two children, Margaret Kopec ("Margaret"), who was Geraldine's maternal aunt, and Nellie, who was Geraldine's mother.

Nellie died in 1965, as was discussed previously.

Margaret had married Frank J. Kopec ("Frank"), and she died in 1974.[FN8] They had seven children, who were Geraldine's maternal cousins:

1. Afra, who died at the age of two in 1912;

2. John William, who died at the age of two in 1922;

3. Colette, who died in 1936; [*4]

4. Virgia, who died in 1966;[FN9]

5. Francis, who died in 1994;

6. Mary Ellen, who died in April, 2005, a few months

before Geraldine; and

7. Helen, who survived Geraldine, but subsequently died

on January 24, 2006.[FN10]

Therefore, I find the proof sufficient to establish that the claimant has proven Helen's status as a maternal cousin and, additionally, has closed the classes of maternal grandparents, aunts and uncles, and cousins. Helen's estate is thus entitled to share in one-half of the decedent's net estate.

Paternal Family

Geraldine's paternal grandfather was Joseph Kopec ("Joseph"). Testimony adduced at a prior hearing indicated that he emigrated from Austria in the late 1800's. Three of his children also emigrated around this time, but it was not established whether they all came to the United States together. Two children, Frank and Thecla, claimant alleges, are Geraldine's only paternal aunts and uncles, and the third child, Andrew, is Geraldine's father. Joseph's death certificate identified him as a widower born in Austria in 1849, and he died in Buffalo in 1910.

Leon's testimony, via video connection from Nebraska, was offered to prove that his father, Joseph Kumor ("Joseph") was Thecla's sole issue, and that he predeceased Geraldine in 1987.

Leon was born in 1935and grew up with his parents and siblings on a grain farm in Nebraska. He recalled meeting his father's mother (his grandmother), Thecla, only once, when he was approximately ten years old, when she had visited Joseph's farm. The memory of this visit was pronounced, because Thecla had given Leon a silver dollar at this time. Leon had heard from his parents that Thecla had remarried a man named Andrew Urkoski ("Andrew U") after the death of her first husband. Leon estimated that Thecla lived approximately 250 miles from Leon's family. Leon had never met Andrew U, nor did he ever see Thecla again after that one visit. He did not attend Thecla's funeral when she died in 1949.

Even though Leon was a credible witness, his personal knowledge of Thecla and her family history was negligible. He did believe that his father, Joseph, was Thecla's only child, because Joseph never mentioned any other siblings. Leon testified that his mother "alluded to [Thecla] being my father's mother, ... [but] I guess specifically I don't have anything." Leon also recalled that his father occasionally visited family in Buffalo, but Leon never met any of them and he did not know their names. He also did not know if Thecla had any children from her marriage to Andrew U, or if she had adopted any of his children.

Without reaching a determination that Joseph was, in fact, Thecla's only child or that she predeceased Geraldine leaving no issue surviving, as claimant contends, I find that significant [*5]proof problems still exist on the paternal side of this family tree.

In kinship proceedings where claimants claim to be decedent's cousins, proof is required to establish that they are issue of grandparents (EPTL §4-1.1[a][6]). As I stated in Matter of Pacosz,

"In order for the Court to determine status on this

level, a common ancestor must be identified (Matter

of Tim, 6 Misc 2d 47 [1956], affd 8 AD2d 720 [1959]).

Until such identification is made, no family tree can be

traced, and no judicial determination of pedigree can be

made' (id., at 51).

It is only from that point on that a family tree can be

constructed so as to allow parties an opportunity to

successfully attach themselves (Matter of Dinzey,

supra)." (Matter of Pacosz, 22 Misc 3d 1105A.)

Thus, the identity of the grandparents, and the identity and number of their children are critical components in a kinship determination, not only as a starting point to allow cousin claimants the opportunity to establish their status, but to close the classes of grandparents, aunts, uncles, and cousins, as well.

Here, the oral and documentary proof submitted establishes that the paternal grandfather, Joseph, was born in Austria circa 1849. However, the proof does not establish how many times Joseph was married, or to whom.

Various unsworn family trees submitted to the Court at the three hearings list two different women as mothers of Andrew, Frank and Thecla. One tree named Maria Fox Kopec as the mother of Frank and Andrew; another tree named "Thecla" as the mother of Thecla. Even more confusing is the family tree submitted by claimant's counsel in this hearing with his evidentiary summary, where "Maria Kopec" is shown as Thecla's mother.

These trees, it is noted, are merely road maps for the Court and other parties to follow. Proof in the form of oral testimony and corroborating documentary evidence is critical to establish these women as Joseph's wives and the mothers of his children.

Oral testimony provided at the first hearing from Nancy Broich, a first cousin once removed, and, thus, a disinterested witness, identified Frank and Andrew's mother as "Mary/Maria Fox Kopec." The only document in evidence supporting this statement is Andrew's death certificate. Frank's death certificate lists his mother as "unknown," with the informant being Frank's own wife, Margaret.

The identity of Thecla's mother is even more unclear. Her 1949 death certificate, where the informant was "John Urkoski,"[FN11] lists her mother's name as "don't know." Thecla's marriage certificate, filed in Nebraska in 1924 when she wed her second husband, Andrew U, states that [*6]her mother's maiden name was "Maggie Pijerski."[FN12]

Since no birth certificates for these parties were offered into evidence, the Court is unable to determine, with any certainty, who the mothers of Frank and Thecla, in fact, are.

Moreover, no marriage certificates, no birth certificates, no estate proceedings, no evidence at all established how many times Joseph had been married, and to whom. This lack of proof is not inconsequential, because the Court remains unable to determine "how many" children were born to Joseph Kopec, through the marriages to "how many" women, and the classes of aunts and uncles, therefore, cannot be closed.

Furthermore, unlike Geraldine's maternal family, who were born in the United States, her paternal family had emigrated from Europe. No foreign documents were received into evidence for any member of Geraldine's paternal family, even though it appears that Joseph, Andrew, Frank and Thecla were born abroad. As I stated in a similar case where foreign documentary evidence was deficient,

"In cases where common ancestors were born in

a foreign country and emigrated to the United

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)."

(Matter of Kuberka, 22 Misc 3d 1104A.)

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

This is an estate worth in excess of a quarter million dollars. Claimant is not entitled to rely on SCPA 2225 with respect to the paternal side of Geraldine's family tree, because the statute requires that "diligent and exhaustive efforts" be made "from all available sources" to locate all heirs. At a minimum, a reasonable effort to garner information is necessary to satisfy the proof required by this statute (see, Matter of Schrake, 129 Misc 2d 671 [1985]), and the size of the estate is a factor to be considered in determining reasonableness (id.).

Here, for example, an early submission from claimant's genealogist is an affidavit couched in the most conclusory terms. Having reviewed the work product of this genealogist in many other [*7]kinship cases, this Court knows well the level of detail - - missing in this case - - which this genealogist typically produces. Moreover, it does not appear that this genealogist was even asked to help clarify the lingering unresolved issues about the Kopec family as it made its way to the United States from Austria or to resolve the issue about the mothers of Frank and Thecla.[FN13]Given the size of this estate (on the paternal side), the efforts that have been shown to meet the requirements of law are neither diligent nor exhaustive within the meaning of the statute (see, Matter of Walsh, ___ 3d ___, 2008 NY Misc LEXIS 5763 [2008] and Matter of Mason, ___ Misc 3d ___, 2008 NY Misc LEXIS 5034 [2008]).

Accordingly, one-half of Geraldine's net estate, after payment of the guardian ad litem's fee, counsel fees for the fiduciary, and administrative expenses, shall be paid to Helen's estate, since she was Geraldine's sole maternal first cousin, with the remaining one-half paid to the New York State Comptroller's Office to be held for the benefit of Geraldine's paternal unknown heirs, there to abide such further and other proceedings as any party may wish to pursue.

Fee applications for the guardian ad litem and Public Administrator's counsel shall be filed with this Court and served on all other counsel and on the Attorney General's office on or before July 15, 2009, and those served will have until July 24, 2009, 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.

DATED:BUFFALO, NEW YORK

June 30, 2009

BARBARA HOWE

Surrogate Judge Footnotes

Footnote 1:This name has some spelling variations throughout this record, e.g. Tekla, and Tetcla.

Footnote 2: Incorporated by reference into this decision.

Footnote 3: Incorporated by reference into this decision.

Footnote 4:His estate file in Erie County Surrogate Court is No. 215996.

Footnote 5:Her estate file in Erie County Surrogate Court is No. D6197.

Footnote 6:Her estate file in Erie County Surrogate Court is No. B5114.

Footnote 7:His estate file in Erie County Surrogate Court is No. 112578.

Footnote 8:Her estate file in Erie County Surrogate Court is No. 1974-5741.

Footnote 9:Her estate file in Erie County Surrogate Court is No. 1966-6478.

Footnote 10:Her estate file in Erie County Surrogate Court is No. 2006-0497.

Footnote 11:This person gave no testimony at any hearing.

Footnote 12:Presumably, Thecla, herself, was the source of this information.

Footnote 13:Additionally, there is no proof of any kind before this Court as to how many children Joseph Kopec had, and what may have happened to any family members who might have been left behind in Austria. This entire area was never addressed by claimant in his proof, except to the extent he initially rejected the idea of Thecla's lineage when her name first arose, a position that has proved ill-taken.