Matter of Sawyer
Annotate this CaseDecided on April 25, 2016
Surrogate's Court, Westchester County
In the Matter of the Proceeding for Final Judicial Settlement of the Account of the Public Administrator of Westchester County as the Administrator of the Estate of Elizabeth J. Sawyer, a/k/a BETTY JEAN SAWYER, Deceased.
2011-343/B
Gordon B. Aydelott, Esq.
Westermann Hamilton Sheehy
Aydelott & Keenan, LLP
222 Bloomingdale Road, Suite 308
White Plains, NY 10605
Attorneys for the Public Administrator
John C. Fisher, Esq.
Hamburger Weinschenk & Fisher
36 West 44th Street
New York, NY 10036
Attorneys for the objectants
Michael Romanoff, Esq.
Romanoff & Milianta
7-11 South Broadway
White Plains, NY 10601
Guardian ad litem
Office of the Attorney General
120 Broadway
New York, NY 10271
Robert A. Onofry, J.
In this contested proceeding to settle a final account, the Public Administrator of [*2]Westchester County (the "Public Administrator") requests that the court, among other things, fix and allow professional fees and direct payment of the estate to the Office of the New York State Comptroller on behalf of the unknown distributees of Elizabeth J. Sawyer (the "decedent") if kinship cannot be proven. Because the account now is four years old, the Public Administrator is directed to bring his account up to date. This decision will determine only the decedent's kinship.
Jurisdiction was obtained over all parties including the alleged distributees, and publication notice was provided to unknown distributees (SCPA 307 [3] [a]). A guardian ad litem was appointed by this court to represent the interest of the decedent's unknown distributees.
Objections were filed on April 11, 2013 by Judith K. Kilmek, Ronald C. Higgins, Kathleen Rusnak Weaver, Dorothy J.H. Hoover, Sandra Higgins Patterson, Irene M. Rusnak, Ilene M. Rusnak, David W. Rusnak, Daniel E. Rusnak, Betty Jean Hennessy, Donna Higgins Hoover and Betty Hiland, by their attorney-in-fact, John C. Fisher, Esq. The pleading objects to the payment of money to the Comptroller and prays that the decedent's assets be distributed to the objectants after a kinship hearing establishing that they are the sole distributees. Subsequently, the attorney-in-fact filed a notice of appearance on behalf of Richard J. Nicholson, as the small estate administrator of the estate of Lucille Eichensehr Nicholson, who as stated below, was a post-deceased aunt of the decedent.
A hearing to determine kinship was held before a referee, appointed upon this court's order of reference with waivers and consents of the Public Administrator, the attorney-in- fact for the decedent's alleged maternal heirs and the guardian ad litem (SCPA 506[6][a]). The parties also waived the filing of the report by the referee and consented to the matter being submitted on the transcript (SCPA 506[6][c]).
The hearing was held on June 8, 2015, and it was attended by counsel for the Public Administrator, counsel for the alleged maternal heirs and the guardian ad litem.
The testimony and documentary evidence established the following record:
The decedent died on December 23, 2010 without a spouse and without any issue.
THE MATERNAL LINE
The decedent's mother Lillian Eichensehr ("Lillian") was born to Joseph Eichensehr and Lillian Fletcher. Lillian had nine siblings ( Josephine, Lucille, Jeanette, Charles, Daniel, Bernard, Mary Ann, Kathleen and Dorothy).
Lillian and her husband John Edward Sawyer had one child, the decedent, on March 28, 1931 in Johnston, PA. Her father died, her mother remarried John Venis, and they had no other children. Her mother predeceased her.
Aunt Josephine married Daniel Rusnak and had seven children (Daniel E. Rusnak, David W. Rusnak, Irene M. Rusnak, Steven Charles Rusnak, Richard Rusnak, Kathy Rusnak (Weaver), and Ilene M. Rusnak. Josephine predeceased the decedent on January 16, 1989.
Aunt Lucille married Miles Nicholson, and she had two children, Richard ("Richard") Nicholson and Eileen Straw ("Eileen"). She post-deceased the decedent on May 13, 2011. On July 22, 2011, Richard and Eileen received letters of administration of a small estate from the State of Maryland. The letters state that a will was probated. While the record before this court does include a copy of the letters of administration, it does not include a certified copy of the instrument that was admitted to probate in the State of Maryland. There was also testimony that Eileen has deceased.
Aunt Jeanette married Earl David Higgins and had seven children (Robert E. [*3]Higgins, Carol Higgins (Hanna), Dorothy J. Higgins (Underwood), Janet M. Higgins (Farney), Donna Higgins (Hoover), Sandra Higgins (Patterson), and Ronald Higgins. Jeanette predeceased the decedent on August 3, 1999. Robert predeceased the decedent on December 15, 1990. Carol predeceased the decedent on April 10, 1997, and Janet predeceased the decedent on March 17, 1973.
Uncle Charles married Hannah Jane Hicks and had three children (Judith Eichensehr (Klimek), Gary Eichensehr and Betty Jean Eichensehr (Hennessy). Charles predeceased the decedent on September 13, 1986.
Uncle Daniel married Margaret Rusnak and had four children (Karen Eichensehr (Whalen), Joann Eichensehr (Mitchell), Ernest Eichensehr and Michelle Eichensehr (Smith). Daniel predeceased the decedent on August 18, 1982.
Uncle Bernard married Ann and had two children (Lesllie Eichensehr (Syracuse) and Bernard Eichensehr. Bernard predeceased the decedent on August 5, 1948. Also predeceasing the decedent were Bernard's children.
Aunt Mary Ann married Mr. Berwanger and had three children (Mary Anne Berwanger, James Berwanger and Lois Berwanger (Fogarty). Mary Ann predeceased the decedent on October 4, 1970. To supplement the record, at the conclusion of the hearing, the attorney-in-fact submitted an affirmation and exhibits regarding the deaths of Mary Anne, James and Lois. The Hennessy-Nowak Funeral Home of Calument City, IL confirmed that he had arranged the funerals for all three of these individuals.
Aunt Kathleen died at the age of seven years.
Aunt Dorothy married Norman Thompson and had one child (Raymond Thompson). She then married Joel Stevens and had five additional children (Joyce Ann Stevens (Leroy), Richard Stevens, Donald Stevens, Fred Stevens and Betty Stevens (Hiland). Dorothy predeceased the decedent on August 29, 1980. Also predeceasing the decedent were Raymond, Joyce, Richard and Donald.
The oral and documentary proof presented at the kinship hearing established pursuant to EPTL 4-1.1[a][6] that the decedent was survived on the maternal side by:
(1) Aunt Lucille Eichensehr Nicolson; (2) First cousins Daniel E. Rusnak, David W. Rusnak, Irene M. Rusnak, Steven Charles Rusnak, Richard Rusnak, Kathleen Rusnak Weaver, and Ilene M. Rusnak; (3) First cousins Dorothy J. Higgins Underwood, Donna Higgins, Sandra Higgins Patterson and Ronald C. Higgins; (4) First cousins Judith K. Klimek, Gary W. Eichensehr, and Betty Jean Hennesy, (5) First cousins Karen Whalen, JoAnn Eichensehr Mitchell, Ernest Eichensehr and Michelle Smith; and (6) First cousins Fred H. Stevens and Betty Hiland.
THE PATERNAL LINE
The family tree presented on the paternal side reflected that the decedent's father was John Edward Woods, Jr. ("Jr.") His father was John Edward Woods, Sr. ("Sr."). Sr. died in 1910, survived by Jr. and his wife, Bernice. Bernice subsequently married James Baker and, they had five children. While reflected on the tree that Jr. was adopted out of the family by his aunt and uncle Pierre Duff Sawyer and Nana Moore in 1908, there were no records to substantiate the tree. Further, while there was some testimony on this issue, it did not substantiate the allegation. Further, the testimony regarding Jr. having a sister Helen, was not borne out by any records, and [*4]the testimony was inconclusive. Again, the tree was incomplete, and the testimony with regard to the tree was not conclusive.
THE GUARDIAN AD LITEM
The guardian ad litem filed a report which stated that the account was accurate, that the decedent had no paternal distributees and that all of the assets should be distributed to the maternal branch of the family. He also recommended a proposed distribution.
SCPA § 2225
At the conclusion of the hearing, counsel for the maternal distributees made an application pursuant to SCPA § 2225 and submitted an affidavit of their genealogist which alleged that he had searched diligently and exhaustively, and he had found no other heirs.
After a careful review of the submissions, it is determined as follows: (a) diligent and exhaustive efforts have been made from all available sources to ascertain the existence of distributees; (b) at least three years have elapsed since the death of the decedent; (c) the parties before the court know of no distributees of the decedent other than those who have appeared before this court; and (d) no claim to a share in the estate has been made by any person whose relationship has not been established in the record (SCPA 2225[b]).
Accordingly, pursuant to SCPA 2225[c], upon satisfaction of all unpaid expenses of administration to be determined after the accounting is amended and supplemented, including all counsel fees, the fee of the guardian ad litem, and the petitioner's commissions (SCPA 2307) and costs (SCPA 1207), as set forth above, the balance of the estate shall be distributed as set forth below.
DISTRIBUTION
EPTL § 4-1.1[a][6] provides that if a decedent, dies intestate, survived by the issue of grandparents only, her assets are to be divided equally between the maternal and paternal branches of the family and then by representation in each branch. If there are no survivors in one of the two branches, the whole of the estate shall pass to the issue of the grandparents by representation with the proviso that issue of grandparents shall not include issue more remote than grandchildren of such grandparents (first cousins of the decedent).
EPTL § 1-2.16 defines representation as a means of distribution of property to individuals who take as issue of a deceased ancestor. The assets are divided into as many equal shares as there are surviving issue in the generation nearest to the deceased ancestor (in this case, the decedent's aunt Lucille) and deceased issue in the same generation who left surviving issue. Each surviving member in such nearest generation receives one share and the remaining shares are combined and then divided in the same manner among the surviving issue of the deceased issue as if the surviving issue who are allocated a share had predeceased without issue (see also Matter of Schoonmaker, NYLJ, Jan. 24, 2002, at p16, col 4).
Based on the statute, the property is to be distributed as follows:
Aunt Lucille Eichensehr Nicolson to receive a 1/6 share payable to the fiduciaries of her estate to be distributed in accordance with her last will and testament). The remaining 5/6 of the estate is to be divided among Daniel E. Rusnak, David W. Rusnak, Irene M. Rusnak, Steven Charles Rusnak, Richard Rusnak, Kathleen Rusnak Weaver, Ilene M. Rusnak; Dorothy J. Higgins Underwood, Donna Higgins, Sandra Higgins Patterson, Ronald C. Higgins, Judith K. Klimek, Gary W. Eichensehr, Betty Jean Hennesy, Karen Whalen, JoAnn Eichensehr Mitchell, Ernest Eichensehr, Michelle Smith; Fred H. Stevens and Betty Hiland.
As noted above, the Public Administrator shall now bring his account to date, and once that has been accomplished the court will determine the validity of the accounting.
THIS CONSTITUTES THE DECISION AND ORDER OF
THE COURT
The papers relied on are as follows:
1. Hearing transcript dated June 8, 2015, including all exhibits admitted into evidence; and
2. Report of the guardian ad litem filed on February 25, 2016.
Dated: White Plains, New York
April 25, 2016
______________________________
HON. ROBERT A. ONOFRY
Acting Surrogate Westchester County
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