Matter of Gadziala

[*1] Matter of Gadziala 2017 NY Slip Op 50123(U) Decided on January 25, 2017 Surrogate's Court, Oneida County Gigliotti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2017
Surrogate's Court, Oneida County

In the Matter of the Estate of Barney M. Gadziala, Jr., Deceased.



2015-654



For Mary Ann Gadziala, Objectant

Peter M. Hobaica, Esq.

For Michael B. Gadziala and

John P. Gadziala, Proponents

C. Louis Abelove, Esq.
Louis P. Gigliotti, S.

Procedural Background

Barney M. Gadziala, Jr. ("Decedent") died testate on August 8, 2015. He was survived by five siblings: Michael Gadziala ("Michael"), John Gadziala ("John"), James Gadziala ("James"), Sharon Gadziala McKeown ("Sharon") and Mary Ann Gadziala ("Mary Ann"). The Last Will and Testament filed with this Court is dated August 3, 2015 and nominates Michael and John as co-executors. Michael and John's probate petition was filed on September 10, 2015, with an amended petition filed on September 15, 2015 for the purpose of increasing the value of Decedent's personal property. Sharon and James signed waivers and consents. Mary Ann requested an examination of the attesting witnesses pursuant to SCPA § 1404, which was held December 15, 2015.

Meanwhile, Michael and John made an application for Preliminary Letters Testamentary, which was filed on October 14, 2015. Preliminary Letters Testamentary were issued that same day, limiting the fiduciaries to opening an estate checking account, liquidating assets and depositing proceeds into said account, and paying ordinary and necessary expenses relative to real property owned by the estate.

On October 21, 2015, the Preliminary Letters Testamentary were revoked and replaced [*2]with Preliminary Letters Testamentary that included an additional provision to sign authorizations for the release of Decedent's medical records. This provision was included at the request of counsel for Mary Ann.

By letter dated October 30, 2015, counsel for Michael and John asked that the Preliminary Letters again be expanded to include the sale of estate property in arms' length transactions. Included with this letter was correspondence dated October 28, 2015 from counsel for Mary Ann, which stated "we have no objection to the sale of any realty or personalty of the estate as long as such sale or transfer is made in an arms length bona fide manner for good value. We believe that the process of marshaling assets and liquidating that which needs to be liquidated should not be delayed due to our [pending 1404 examination]." The Chief Clerk of Surrogate's Court contacted the office of counsel for Michael and John to explain that the Preliminary Letters Testamentary already issued encompassed the relief requested.

By letter dated January 20, 2016, counsel for Michael and John asked for another amendment to the Preliminary Letters for the purpose of opening Decedent's safe deposit box at Berkshire Bank. Counsel for Mary Ann advised that she did not object to this relief, as long as she or her representative could be present when the box was opened. Amended Preliminary Letters were issued on January 25, 2016 authorizing same. These Preliminary Letters were then extended on July 28, 2016.

With respect to the original probate petition, Mary Ann submitted objections, which were filed on February 16, 2016. She objected to the admissibility of the Will on the grounds that Michael had unduly influenced Decedent in the drafting of the Will and that Decedent lacked testamentary capacity when he signed it. Mary Ann further alleged a breach of fiduciary duty on the part of Michael and James, based upon their having "entered the Decedent's home [with other family members], found and distributed a large amount of cash, jewelry and other possessions of the decedent among themselves." (Objections filed Feb. 16, 2016, ¶ 6). Mary Ann subsequently withdrew her objections as to the validity of the Will.

Amended objections to the qualifications of Michael and John to serve as fiduciaries were filed on April 26, 2016. Those objections are summarized as follows:

1. John and James left messages on Mary Ann's answering machine that were threatening in nature to Mary Ann and her husband.2. Michael and John have failed to disclose guns owned by Decedent.3. Following Decedent's funeral, Michael and John entered Decedent's home, discovered cash and jewelry, and distributed same. Mary Ann acknowledges having received a portion of the cash, but believed her share to be approximately $25,000 less than her 1/5 share.4. Among the cash discovered at Decedent's house were "older bills and silver certificates," which may have a value greater than their face value and for which Michael and John did not obtain an independent appraisal.5. Certain vehicles owned by Decedent and not specifically devised in the Will have not been accounted for.6. Michael, John and James converted some of Decedent's personal property for their own use.7. Michael and John have not accounted for all of Decedent's assets, including rents from [*3]tenants in properties owned by Decedent.8. Michael and John are holding aside $100,000.00 upon advice of counsel to address a potential DEC violation affecting one of Decedent's properties, and no explanation as to the source of those funds is provided.9. All cash distributed to Decedent's siblings should be collected and placed in an estate checking account, and all "older bills and silver certificates" should be separately appraised.

Mary Ann asks the Court to deny Letters Testamentary to Michael and John, pursuant to SCPA § 711(2), 711(3), 711(7) and 711(8). The Court originally scheduled a hearing date for May 26, 2016. At Mary Ann's request, the hearing was rescheduled to July 15, 2016.

On June 29, 2016, counsel for Michael and John filed the inventory of assets as required by Surrogate's Court Rule § 207.20, as well as an inventory of firearms. These filings were timely under the Rule, as amended effective March 1, 2016, as they were submitted within nine months of the issuance of the first Preliminary Letters Testamentary.

On July 6, 2016, counsel for Michael and John submitted an affirmation asking the Court to modify a subpoena duces tecum issued on Mary Ann's behalf, which requested Michael and John to bring to the hearing "any and all notes, documents, papers, records, and assets" in their possession relating to Decedent's estate. Counsel objected to the inclusion of "assets" in the subpoena on the basis that the term was overly broad and that producing estate assets was irrelevant to the issues to be addressed at the hearing. An Order to Show Cause issued, which was returnable July 13, 2016. On that date, the Court verbally granted the requested relief and confirmed same by written Order dated July 15, 2016. That being said, Michael and John did bring various items of personal property with them to the hearing, which were not produced as evidence for the Court to consider but rather made available to Mary Ann and her counsel for inspection.

At the July 15, 2016 hearing, James, John and Michael were called by Mary Ann's attorney to testify. Numerous documents were also received into evidence. At the conclusion of the hearing, the Court asked for written summations from counsel, which were timely received. In rendering this decision, the Court has considered all of the testimony and documentary evidence placed before it.

Evidentiary Proof

Based upon the evidence received, and considered in the context of Mary Ann's specific objections, the following picture emerges. Decedent lived with his mother at the family homestead until her death, and then he lived alone. Within days of Decedent's funeral, Michael and his wife, John, James and his wife, and Sharon went to the house. They discovered nearly $730,000.00 in cash, found primarily in their mother's room and in Barney's room. Their mother had wrapped some cash in aluminum foil and taped the packets to the undersides of her dresser drawers. Decedent had placed cash inside his dresser drawers. Other cash was found throughout the house. The "older bills and silver certificates" referenced in Mary Ann's objections were discovered at this time. The cash was accumulated, commingled and counted while the siblings were still at the house. All appeared to be of the understanding that Michael and John were the nominated fiduciaries in Decedent's Will, such that those present agreed with Michael and John's [*4]decision to distribute the cash immediately in equal shares among all the siblings. James took possession of Mary Ann's share and phoned her to tell her about the money, which she personally retrieved at a later date since she lives outside New York state.

As for Mary Ann's claim that her share was $25,000.00 less than 1/5 of the $730,000.00 found, Michael explained he was aware of allegations made by the New York State Department of Environmental Conservation (DEC) in June 2015 regarding spills on property owned by Decedent at 126 Oriskany Boulevard in the Town of Whitestown, which property Decedent directed in his Will be sold and the proceeds divided equally among James, John, Sharon and Mary Ann. Michael testified that a letter (admitted into evidence as Exhibit 2) arrived from the DEC about two months prior to Decedent's death, when Decedent was battling cancer, and thus Michael took the initiative to bring the letter to Decedent's attorney for response. Michael later advised his siblings of the contents of the letter. Since only four of the five siblings would be affected by any claim the DEC may successfully assert, Michael reasoned he should withhold amounts from their cash distributions to cover the cost of any such claim. He estimated $100,000.00 would be sufficient, and therefore reduced these siblings' shares by $25,000.00 each. Michael was unaware of other significant debts owed by Decedent based upon what he knew about Decedent's spending habits.

Mary Ann and Michael independently advised the estate attorney about the cash distribution. Michael was uncertain whether he or Mary Ann was the first to do so, but he recalled talking about it with the estate attorney within days after the money was found. A letter dated September 3, 2015, written by the estate attorney to Mary Ann and admitted into evidence as Exhibit 6, corroborates Michael's recollection. The letter refers to a telephone conversation between Mary Ann and the attorney. It suggests this conversation included the topic of the cash distributed, because the attorney confirms the total amount of cash found after speaking with Michael. Later in the letter, the attorney refers to a "first" conversation with Michael in which total dollars were not discussed, but rather the need to set funds aside to cover potential estate expenses and liabilities. The Court understands this letter to mean the attorney had two separate conversations with Michael: (1) the first to discuss generally the cash found at the house; and (2) the second to discuss issues raised by Mary Ann.

The estate attorney advised Michael to take back the cash monies so that same could be deposited into an estate checking account, although the timing of this request is unclear from the record. In any event, Michael made the request and received all of the money back from John, James and Sharon. Mary Ann gave her share to her own attorney for safekeeping. Of the monies Michael did receive, he took the "older bills and silver certificates" to two separate appraisers. One paid the difference between the face value and the intrinsic value for the silver certificates. Michael testified that the appraisers said the bills were worth only face value. Michael does not have a written appraisal or receipt because the amount paid for the silver certificates was negligible.

As to personal property, while unclear whether certain pieces of jewelry were distributed on the same day as the cash or shortly thereafter, the testimony confirms that Michael and James each took a Rolex watch, Sharon took a broach, and James also took a ring and two lion statuettes. The watches, broach and ring were subsequently returned to Michael at his request. He tried without success to have the Rolex watches appraised. The other jewelry was deemed to [*5]be costume jewelry of no independent value. James estimated the statuettes to be worth $20.00 each. Personal paintings created by Mary Ann were left at the house, and James made arrangements with her to retrieve them. As for furniture, Michael felt it should be considered part of his mother's estate since she had furnished the home. Consequently, and even though Decedent's Will directed the fiduciaries to permit the siblings to select items from the house to take, Michael had the furniture separately appraised. He shared the appraisal with his siblings and offered them the opportunity to purchase what they wanted. Only James responded by asking to purchase a television.

Also among the personal property were two different coin collections. Michael and John both believed the collections belonged to their mother, because Decedent was not known to collect coins. One collection was intact, and John took possession of it. Michael testified that he subsequently had the collection appraised and provided a copy of the appraisal to his siblings. Their mother had divided the other collection into boxes when she was alive and marked on each one which particular box was to go to which particular child. Since Sharon and Mary Ann had not previously received their coins, Michael and John set aside the boxes identified as theirs.

Michael, John and James explained the decisions surrounding the distribution of cash and personal property as having been in furtherance of safeguarding estate assets. Although Mary Ann did not present evidence directly contradicting this explanation, her attorney attempted to raise doubt about its legitimacy through his questioning of the witnesses. For example, James acknowledged that with respect to their mother's coin collection, John had expressed an interest in it and had taken it from Decedent's house prior to Michael bringing the collection to an appraiser. As another example, none of the witnesses indicated that Mary Ann was given instructions to hold her share of the cash distribution until estate administration was complete. Regarding Michael and John's stated concern that they asked their siblings to hold on to property because Decedent's house was somewhat remote and a window was found broken after Decedent's death (suggesting an attempted burglary), they admitted the vandalism might have occurred after the distribution of cash and jewelry. The last known burglary at the premises was 20 years prior.

As for firearms owned by the Decedent, Michael testified that he had the pistols appraised in September 2015, after which he brought them to the Sheriff's Department within 30 days of Decedent's death. A copy of the appraisal was admitted into evidence as Exhibit 8. Michael had the remaining rifles appraised several months before the hearing. He explained that his priority was to have the pistols appraised and surrendered so that he would not run afoul of the deadline for turning them in. Michael is currently in possession of the rifles for safekeeping.

Regarding vehicles, some were located on the property where Decedent operated his business, including the cars specifically devised in Decedent's Will. Other cars were located on the property specifically devised to James and his wife. James testified that some of these cars were of junk value, and he sold them for parts. He turned over the proceeds to either Michael or John to be added to estate assets. John confirmed that a list of vehicles located on the property and specifically devised to James, John, Sharon and Mary Ann was provided to the attorney for the estate.

The only testimony regarding rents was elicited from James, who acknowledged that he was collecting rents from tenants located at 195 Whitesboro Street in the Town of Whitesboro. [*6]This property however, is specifically devised to James and his wife in Paragraph Fifth of Decedent's Will. James testified that the rent money is deposited into his personal account and used to pay ongoing expenses such as real property taxes. He attested that all taxes are current for this parcel. Both James and Michael testified that no one has operated Decedent's business after his death. Michael testified that he sold the shop license prior to its expiration to generate cash revenue for the estate. No other evidence indicates the business property is occupied by a third party from whom rents would need to be collected.

Counsel for Mary Ann attempted on different occasions at the hearing to admit into evidence recordings of voice messages allegedly left on Mary Ann's answering machine by James and John, which her objections characterize as threatening. During James' testimony, counsel for Mary Ann proffered the tapes for the purpose of establishing hostility between James and Mary Ann. James acknowledged Mary Ann was not well liked by her siblings, that he was angry with her at the time he made the phone calls, and he was alone when such calls were made. Due to the fact that James was not represented by counsel at the hearing, that he acknowledged at the hearing what the tape was offered to prove, and that the Court was hesitant to permit a potential violation of James' Fifth Amendment rights, the tape was not admitted into evidence. A similar proffer was made during John's testimony regarding a phone message he left for Mary Ann, for the purpose of showing John had taken possession of his mother's coin collection. Since John had admitted to same on direct examination, the Court considered the tape to be cumulative and did not allow it into evidence.

Legal Analysis

As noted within the above-described procedural history, Mary Ann's objections are limited to the probate petition and the qualifications of Michael and John to serve as fiduciaries. She has not filed a petition to revoke the Preliminary Letters Testamentary in Decedent's estate.[FN1]

SCPA § 709 sets forth the procedure for filing objections to the grant of letters and requires an objectant to identify one or more of the legal objections set forth in SCPA § 707. Mary Ann's papers instead set forth objections found in SCPA § 711, relative to the suspension, modification or revocation of letters or the removal of a fiduciary for disqualification or misconduct. SCPA § 707 contains fewer grounds for finding a person ineligible to serve. Nevertheless, the Court considers Mary Ann's objections to fall within SCPA § 707(1)(e), which makes ineligible a person "who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office." In particular, the Court finds Mary Ann's objections most [*7]closely allege improvidence, dishonesty and the unfitness of her brothers to serve as executors.[FN2]

Mary Ann as objectant bears the burden of proof. (See Matter of Krom, 86 AD2d 689, 690 [3d Dept 1982]; Matter of Stege, 164 Misc 95, 97 [Sur Ct, Sullivan County 1937]). Conclusions and inferences alone, without supporting facts, provide an insufficient basis for supporting one's objections to the fitness of another to serve as fiduciary. (See Matter of Riede, 138 AD 83, 84 [2d Dept 1910]; see also Matter of Mandelbaum, 7 Misc 3d 539, 542 [Sur Ct, Nassau County 2005]).

The First Department has succinctly summarized the standards under SCPA § 707(1)(e) for barring the appointment of a nominated fiduciary based on improvidence or dishonesty:

[I]n order for a nominated fiduciary's improvidence to preclude his appointment, it must be demonstrated that his habits of mind and conduct have become such a part of his character as to render him unfit for the trust or employment in question. The dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor.

(Matter of Gottlieb, 75 AD3d 99, 107 [1st Dept 2010] [internal quotation marks and citations omitted]). Whether a person is "otherwise unfit" to serve as a fiduciary is somewhat of a "catch-all" category, expanding the grounds upon which a court can deny letters to a person who does not necessarily fall within the other specified categories of SCPA § 707. (See Matter of Rad, 162 Misc 2d 229, 231 [Sur Ct, NY County 1994]; see also 2-33 Warren's Heaton, Surrogate's Court Practice § 33.02 [6][e] [2017] [Note: online treatise]). The overarching and long-standing principle however, is that "the testator still enjoys the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will, and his solemn selection is not lightly to be disregarded." (Matter of Leland, 219 NY 387, 393 [1916]).

At best, Mary Ann's evidence shows Michael and John to have been uninformed about the legal requirements of EPTL § 11-1.3, which restricts an executor from disposing part of an estate until letters are issued. Yet violations of this statute appear to be addressed in the form of surcharges against an executor, as opposed to denying letters. (See, e.g., Matter of Lewis, NYLJ, April 14, 2014, at 29, col. 2 [Sur Ct Nassau County 2014] [granting summary judgment dismissing objections to the appointment of nominated co-executors, even accepting as true allegations regarding the disposition of estate assets prior to the issuance of preliminary letters]; Matter of Yarm, 119 AD2d 754 [2d Dept 1986]; see also Margaret Valentine Turano, Practice Commentaries, McKinney's Cons Laws of NY, EPTL § 11-1.3 [Note: online version]).

Moreover, experience in managing estates is not a prerequisite to appointment as a fiduciary. (See Matter of Stege, 164 Misc at 98). Michael and John have retained counsel to assist them from as early as a couple of weeks after Decedent's death. More important, the [*8]evidence shows Michael and John have heeded the advice of counsel. When their lawyer asked to have estate assets returned, Michael and John returned the cash and personal property in their possession and collected the same from James and Sharon, with no evidence at present to suggest anything is missing. When advised to obtain appraisals, Michael did so. All disclosures required by Surrogate's Court relative to filing an inventory of assets and a firearms inventory have been timely filed. Explanations were offered at the hearing to explain the disposition of certain junked vehicles not specifically devised under Decedent's Will. Any rents collected were in connection with property specifically devised to James, with no evidence to suggest the estate will require that asset to satisfy debts and thus no authority for the fiduciaries to collect rents in the first place. (See generally EPTL § 11-1.1(b)(5)). Michael has acted with knowledge of the DEC claim instead of ignoring a potential liability. (Cf. Matter of Bosco, 106 Misc 2d 454 [Sur Ct, Richmond County 1980] [removing a fiduciary under SCPA § 711(2) for acting disadvantageously to an estate when she refused to participate in the prosecution of a wrongful death and conscious pain and suffering lawsuit]). While the testimony elicited implies some documentation may be missing as to what certain assets were worth and raises other questions as to whether full value was obtained for some assets, those issues are better addressed in an accounting proceeding. (See, e.g., Matter of Lewis, NYLJ, April 14, 2014, at 29, col. 2 ["If [objectant] objects to actions taken by [the co-executors], the proper recourse is to seek judicial accountings . . . and to raise her objections, if any, to their conduct within the context of those proceedings."]; Matter of Haber, 30 Misc 3d 1225[A], 2011 NY Slip Op 50199[U], *2 [Sur Ct, Bronx County 2011]; Matter of Jung, 205 AD 37, 38 [1st Dept 1923] ["[I]f there had been any irregularities in the management of the estate, these would show upon an accounting, which was the proper remedy."]).

Courts have permitted the appointment of nominated executors with a far worse track record than Mary Ann has presented relative to Michael and John. (See, e.g., Matter of Cugini, 24 Misc 3d 1234[A], 2009 NY Slip Op 51749[U] [Sur Ct, Richmond County 2009] [dismissing objections where the nominated fiduciary was alleged to have a history of gambling debt, cocaine use and taking money from his mother without her knowledge, but in recent years showed a marked improvement in behavior]). Courts have also granted full letters testamentary to nominated executors following objections based on their work as preliminary executors. (See, e.g., Matter of Lewis, NYLJ, April 14, 2014, at 29, col. 2 [dismissing objections on summary judgment, where even if allegations were proven, they would show: (1) prior to the issuance of preliminary letters, the nominated co-executors engaged an appraiser, listed decedent's real property for sale, solicited offers and held an estate sale of decedent's personal property; (2) one of the co-executors acted as the real estate broker and took a 6% commission; (3) the husband of one of the co-executors prepared the real estate contract, conducted the sale and charged a fee for his work; and (4) the co-executors used estate assets to pay real estate taxes prior to the issuance of preliminary letters]).

Even if Mary Ann were correct in her thinking that Michael and John, for the purpose of the hearing before this Court, belatedly devised the explanation of distributing assets to her and her siblings as part of their efforts to safeguard estate assets, such a conclusion would fall short of the legal standards set for dishonesty and improvidence pursuant to SCPA § 707(1)(e). As discussed, the evidence suggests all estate property (with the exception of the cash returned by [*9]Mary Ann to her own attorney) is under the care and control of Michael and John so as to counter any allegation of dishonesty and assuage concern about the safety of estate assets. The evidence further shows Michael and John are amenable to advice and direction from counsel, which indicates their actions in the early days after Decedent's death were not improvident as a legal matter, but rather a mistake willingly corrected.

To the extent Mary Ann has objected based on alleged threatening voice messages left by James and John, James' actions are irrelevant to the matter at hand unless Mary Ann can prove he acted in concert with John and/or Michael. No such proof was presented. James testified that he was alone when he called Mary Ann at the times in question. Mary Ann attempted to enter into evidence tape recordings of the voice message allegedly left by John for the purpose of showing he took their mother's coin collection without authority, but no other evidence as to how this particular message was threatening to Mary Ann or her husband was proffered. Both James and John testified that Michael was not with either of them when they placed their calls to Mary Ann. In sum, Mary Ann has not proven misconduct on the part of Michael or John.

James acknowledged acrimony among the siblings relative to Mary Ann, but the proof does not show animosity rising to such a level as to interfere with the ability or integrity of Michael and John to act as executors. "[A]crimony alone does not constitute grounds for disqualification as fiduciary, [but] disqualification is warranted if the disharmony jeopardizes the interests of the beneficiaries and the proper administration of the estate." (Matter of Rad, 162 Misc 2d at 232). The petitioner in Rad was denied letters of administration c.t.a. because of threats of physical harm made to the successor executor to procure a renunciation, as well as the petitioner's hostility toward her brothers. Here, whatever feelings Michael and John may have for Mary Ann, the evidence shows she has not been disfavored in their decision making. Of the cash assets discovered at Decedent's home, Michael and John made sure Mary Ann received the same share as the other siblings. The coins designated by their mother for Mary Ann were set aside for her. She was contacted to retrieve her personal paintings. She was offered the same opportunity to purchase furnishings. In other words, whatever discord may exist between Michael, John and Mary Ann, the evidence does not show it interfering with objective decisions that need to be made relative to the estate.

Indeed, Mary Ann's actions suggest that despite the nature of her relationship with Michael and John, she believes them to be capable of carrying out their duties as co-executors. The letter admitted into evidence as Exhibit 6 is written to Mary Ann by the attorney for both Decedent's and her mother Helen's estate. Said letter, in addition to discussing the $730,000.00 cash found at the family homestead, included a revised petition for Mary Ann's appointment as successor executrix of her mother's estate.[FN3] Taking judicial notice of records in the estate file for Helen Gadziala (see Matter of Blake, 146 Misc 780, 781-82 [Sur Ct, Kings County 1933]), the Court learned that Mary Ann ultimately signed a renunciation of her right to receive successor letters testamentary and consented to the appointment of Michael and John as fiduciaries. Within the context of Decedent's estate, Mary Ann expressed consent in October 2015 to Michael and John exercising central functions of a fiduciary, namely to sell realty and property of the estate. [*10]Her attorney specifically wrote in his October 28, 2015 letter that "[w]e believe that the process of marshaling assets and liquidating that which needs to be liquidated should not be delayed." Mary Ann again ratified her consent to Michael and John serving as fiduciaries when on February 8, 2016, she signed a renunciation of her right to receive letters of administration c.t.a. in her mother's estate and consented to the appointment of Michael and John without bond, meaning without requiring security for the value of the estate's assets. Furthermore, while she seeks to thwart their receipt of unrestricted letters testamentary in Decedent's estate, Mary Ann has not petitioned to revoke Michael and John's preliminary letters.

These actions belie any assertion by Mary Ann that Michael and John are ineligible to serve as executors for Decedent's estate. From September 2015 (when her original objections are verified) to February 2016 (when said objections are filed), Mary Ann knew how Michael and John had been handling her brother's affairs. Yet as outlined above, she repeatedly affirmed her consent to their fiduciary appointments in both her mother's and Decedent's estates. What seems to have changed most dramatically by the time Mary Ann filed her amended objections in April 2016 were the phone messages allegedly left by James and John, which according to an e-mail message from Michael to Mary Ann (admitted into evidence as Exhibit 1), would have occurred in March 2016. As previously discussed however, the proof presented at the hearing relative to these phone messages is insufficient to warrant the disqualification of Michael and John.

For all of the reasons stated herein, and finding Mary Ann has failed to meet her burden of proof, it is hereby

ORDERED that the objections filed by Mary Ann Gadziala on February 16, 2016 and amended on April 26, 2016 are hereby DISMISSED; and it is further

ORDERED that the petition filed by Michael Gadziala and John Gadziala for Letters Testamentary is GRANTED, and the Surrogate's Court Clerk's Office is to issue a decree granting probate authorizing the issuance of said Letters.

Dated: January 25, 2017ENTER:

Utica, New York

HON. LOUIS P. GIGLIOTTI, SURROGATE Footnotes

Footnote 1:Mary Ann has however, filed a petition to remove Michael and John as Administrators CTA in the estate of their mother, Helen Gadziala. Said petition was filed May 6, 2016. Since many of the allegations overlapped, the parties consented to the Court taking no immediate action with respect to this petition, pending the outcome of the objections filed by Mary Ann in Decedent's estate.

Footnote 2:Although SCPA § 707(1)(e) also encompasses substance abuse, no evidence suggests this concern applies to Michael or John. "Want of understanding" means "an absence of intelligence sufficient to comprehend the nature and extent of fiduciary duties." (Matter of Britton, 173 Misc 2d 300, 302 [Sur Ct, Westchester County 1997]). No evidence was presented to suggest Michael and John could not comprehend the tasks of being co-executors.

Footnote 3:Decedent was the nominated fiduciary and received letters to serve in that capacity until his death.