Matter of Arthur Buxton

[*1] Matter of Arthur Buxton 2003 NY Slip Op 51492(U) Decided on October 23, 2003 Surrogate's Court, Westchester County, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2003
Surrogate's Court, Westchester County,

In the Matter of the Petition of APRIL BUXTON-SINCLAIR, as Executrix, to Compel ANGELA BUXTON CAMPBELL to Account as De Facto Fiduciary of ARTHUR BUXTON, Deceased. In the Matter of the Proceeding by APRIL BUXTON-SINCLAIR, as Executrix of the Estate of ARTHUR BUXTON, Deceased, To Discover Property Withheld.



File No. 1951/99



EDWARD D. LOUGHMAN, III, ESQ.

MULDOON, HORGAN & LOUGHMAN, LLP

Attorneys for Petitioner

271 North Avenue

New Rochelle, New York, 10801

ANGELA BUXTON CAMPBELL

Respondent, Pro Se

Anthony A. Scarpino, Jr., S.

Before the Court are two contested proceedings in the estate of Arthur Buxton ("decedent"). In a discovery proceeding (SCPA 2103), April Buxton-Sinclair, the executrix of decedent's estate ("petitioner"), seeks the turnover of certain documents and assets from Angela Buxton Campbell, a granddaughter of decedent ("respondent"), who allegedly controlled decedent's assets during the final six years of his life. In the other proceeding, petitioner seeks an order compelling respondent to account (SCPA 2205) as the de facto fiduciary with respect to decedent's property for the aforementioned period. ESTATE OF ARTHUR BUXTONFile No. 1951/99

In light of the common issues raised therein, the Court consolidated the proceedings for trial (SCPA 501[2][a]), which was conducted before a Court Attorney / Referee. At the trial, petitioner testified on her own behalf, and called as witnesses-in-chief: (i) Kim Buxton-Campell, another granddaughter of decedent and respondent's sister ("Kim"); (ii) Hildreth Cita, a long-time tenant of a rental unit owned by decedent ("Cita"); and (iii) petitioner's spouse. Respondent represented herself, and testified on her own behalf. She produced no other witnesses.

At the close of the trial, all parties waived the filing of the Referee's report, and stipulated to the Court's determination of all issues upon the trial transcript and the documents in evidence (SCPA 506[6][c]). [*2]

Based upon the credible evidence adduced at the trial, the Court hereby directs that respondent account as de facto fiduciary with respect to decedent's assets, for the period of March 1, 1993 through February 28, 1999. Additionally, the Court grants the relief sought in the discovery proceeding, to the extent set forth, infra.

Decedent died testate on May 21, 1999, at age 100. He had been married three times, but was survived solely by grandchildren. In his will, executed in September 1993, he left his estate to four named grandchildren (including petitioner and respondent) and nominated respondent as executrix and petitioner as successor executrix.[FN1] ESTATE OF ARTHUR BUXTONFile No. 1951/99

Decedent had been a long-time resident and part-owner of 136-138 Remington Place, New Rochelle ("136 Remington"), a multi-family dwelling which generated rental income since as early as the 1960s. He had retired from his position as a laborer with the New York City Housing Department in the late 1960's, and, by all accounts, lived modestly in retirement. According to respondent, decedent had never become accustomed to performing the most mundane household tasks (i.e., shopping, cooking, laundry, cleaning), and had always relied on others to assist him in performing these tasks. Decedent's third wife, Hattie, performed these household tasks, among others, until her death in January 1990. Thereafter, Robert Buxton, decedent's son and respondent's father ("Robert"), assumed the role as decedent's "caretaker" until his death in December 1992. By her own admission, by March 1993, respondent, a long-time health care administrator and doctoral candidate, had become decedent's primary "caretaker", in Robert's stead.

During the 1990's, notwithstanding his need for domestic assistance and several hospitalizations, decedent did not suffer from any debilitating mental or physical ailments. His only notable physical impairment was in executing his signature, due to the fact that his hand was always unsteady or "shaking" when he tried to do so.

As to the handling of decedent's finances in the early 1990's, Robert was principally responsible for assisting decedent with paying his bills and banking. When Robert wasn't available, Cita would occasionally assist decedent with his execution of ESTATE OF ARTHUR BUXTONFile No. 1951/99

checks and would drive him to the bank so that he could make deposits. Cita did not assist decedent with these tasks subsequent to the time respondent became decedent's "caretaker". Also, according to Cita, decedent did not perform any banking transactions by electronic means or at automated teller machines. [*3]

As to the extent of decedent's assets prior to Robert's death, testimony and limited bank records produced at the hearing indicate that by October 1992, decedent and Robert were listed as holders of checking/savings account at Marine Midland Bank with proceeds of approximately $187,500.00 ("original Marine Midland account"). Decedent was also receiving monthly income from at least three sources: Social Security payments, pension payments, and the income generated by rents from 136 Remington, including rent from respondent when she resided there in the early 1990's. Petitioner introduced evidence that between March and September 1992, Robert had made numerous withdrawals from the original Marine Midland account for his own use, without decedent's knowledge.

In or around May 1993, respondent and decedent went to Marine Midland bank in New Rochelle and, simultaneously, closed the original Marine Midland account and

opened a checking account and a savings account in their names ("Marine Midland-Checking"; "Marine Midland-Savings", respectively). At that time, these accounts had proceeds of approximately $125,000.00. Also, a Preferred Money Market Account at Citibank was opened, listing respondent and decedent as title holders (Citibank-PMMA"). According to respondent, that account was funded with approximately $75,000.00, taken ESTATE OF ARTHUR BUXTONFile No. 1951/99

primarily from the original Marine Midland-Checking account, and, to some extent, from respondent's own checking/savings account at Citibank, which she had opened in 1990

("Citibank-Checking/Savings"). At that time, respondent "linked" the Citibank-PMMA account with her Citibank-Checking/Savings account for electronic banking purposes. [FN2] According to respondent, beginning in or around May 1993 and through March 1999, she performed the following tasks, among others, on decedent's behalf:(i) she hired and paid domestic aides to cook, clean, do laundry, and perform other routine housekeeping chores at 136 Remington for decedent's benefit during the week, and, as time permitted, she performed those tasks on weekends; (ii) she personally did decedent's food shopping every two weeks, and regularly performed her own "inventory" of decedent's residence to assess what items were needed there; (iii) after decedent sorted his own mail and identified for her appropriate outstanding invoices and bills to pay, she was directly responsible for paying all bills attendant to the upkeep of 136 Remington, particularly local municipal, property, and school taxes, as well as insurance, utilities, heating oil, and local transportation services; and (iv) upon decedent's personal receipt of rent payments, whether by cash or check, she would write out rent receipts for the tenants, and decedent referred his tenants to respondent with all landlord-tenant issues that arose at 136 Remington. Moreover, despite the fact that she no longer resided at 136 Remington by March 1993, respondent continued to use 136 Remington as her address of record for ESTATE OF ARTHUR BUXTONFile No. 1951/99[*4]

receipt of all her professional and financial correspondence, including her business and banking mail, bills, and income tax records. Also, for her own convenience and for the purpose of using the New Rochelle school system, respondent allowed her daughter to reside at 136 Remington at times. In short, respondent visited with decedent "nearly every day", and was in contact with him by telephone "nearly four-five times per day" during the period in question.

As to her role with respect to decedent's finances, respondent testified that beginning in March 1993 and throughout the period in question, she paid all of decedent's bills, expenses and other obligations - whether in cash or by check - out of either the Marine Midland-Checking account and/or her Citibank-Savings/Checking account. In this regard, she usually funded payments from the Citibank-Savings/Checking account by transferring assets to that account from the Citibank-PMMA account. Additionally, she testified that in 1994, an investment account was opened at Citibank, listing both respondent and decedent as owners ("Citibank-Investment #1"). This account was initially funded principally by proceeds from the Citibank-PMMA account, the Marine Midland-Checking account, and partly from respondent's share of the proceeds from the sale of a cooperative apartment owned by Robert, which respondent sold in her capacity as administratrix of Robert's estate. From its inception, the Citibank-Investment # 1 account was "linked" to the Citibank-PMMA account and the Citibank-Savings/Checking accounts for electronic banking purposes. Also in 1994, respondent opened a Visa credit card ESTATE OF ARTHUR BUXTONFile No. 1951/99

account, from which credit cards were issued individually to both respondent and decedent. In 1997, a second investment account was opened at Citibank, solely in respondent's name ("Citibank-Investment # 2"). This account was initially funded by the entire proceeds from Citibank-Investment # 1, which was closed at that time.

As to decedent's sources of income, respondent testified that, during the period in question, she never personally handled any checks or cash proceeds from rent payments, Social Security checks, or pension checks. Instead, decedent received these payments directly, then personally cashed any checks and deposited the cash proceeds, into a "strongbox" he kept at 136 Remington. During the period in question, respondent took possession of the strongbox at her own residence during the few limited occasions when decedent was hospitalized for various ailments. At all other times, the box remained at 136 Remington. Respondent testified that the all cash proceeds, which she described as "stacks of cash", in the strongbox were stolen during a "break-in" which occurred at 136 Remington in 1998.

In January 1999, upon her return from a trip to Florida, respondent testified that decedent was "unhappy" with her for not being with him during the 1998 holiday season, and his relationship with her and his overall physical state worsened as he became more despondent. In March 1999, after decedent had requested petitioner to help him find his will and strongbox, which he believed was missing from 136 Remington, petitioner discovered various documents relating to the Marine Midland and Citibank accounts. Thereupon, petitioner took decedent to both Marine Midland and Citibank [*5]ESTATE OF ARTHUR BUXTONFile No. 1951/99

facilities, at which time they learned that the balance in the Marine Midland accounts was was approximately $3,000.00, and the balance in the Citibank-PMMA account was $.29. Decedent reacted angrily to the information regarding the depletion of his assets, and, with petitioner's aid, commenced an investigation into the matter, which entailed inquiry of bank officials and meetings with a representative from the Westchester County District Attorney's Office. Meanwhile, petitioner, who had assumed the role of decedent's "caretaker", called a "family meeting" for March 19, 1999 to discuss decedent's finances. Respondent refused to attend this meeting, based on petitioner's alleged threats to her safety. Subsequently, on April 26, 1999, upon due application, petitioner became decedent's court-appointed guardian under Mental Hygiene Law article 81. During the guardianship litigation, respondent refused to turn over the financial records she kept regarding her stewardship of decedent's assets, despite a court order to do so. Decedent died less than one month after petitioner had been appointed his guardian.

It is well settled that this Court may deem a person to be a de facto fiduciary, even though he or she never qualified or was authorized to act in a fiduciary capacity, if that person undertook duties and responsibilities ordinarily assumed by a fiduciary (see, Matter of Donner, 82 NY2d 574; Matter of Sakow, 160 Misc 2d 703; Matter of Lasser, NYLJ, June 4, 1986, at 13, col 3). The Court has the authority to require a de facto fiduciary to file an accounting in the best interests of the estate (see, SCPA 2205[1]; Matter of Morrison, 268 AD2d 435, 436) regardless of whether the Surrogate's Court Procedure ESTATE OF ARTHUR BUXTONFile No. 1951/99

Act explicitly defines the role that person assumed as a "fiduciary" (SCPA 103[21]; see, e.g., Matter of Cohen, 139 Misc 2d 1082 [and cases cited]). In this regard, a "fiduciary relationship" is "one founded on trust or confidence reposed by one person in the integrity and fidelity of another * * * and exists * * * in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both the technical fiduciary relations and those informal relations which exist whenever one [person] trusts in and relies upon another" (Mobil Oil Corp. V Rubenfeld, 72 Misc 2d 392, 399-400, affd 77 Misc 2d 962, revd on other grounds 48 AD2d 428, affd 40 NY2d 936).

The Court has carefully reviewed the competent documentary evidence and testimony elicited at the trial. In light of that testimony and evidence, the Court finds that from as early as March 1993 through as late as February 1999, respondent should be deemed a de facto fiduciary with respect to decedent's personal and financial affairs.

Respondent's claims to the contrary are called into question by the competent evidence and credible testimony adduced at the trial. In general, respondent's credibility was significantly undermined by numerous discrepancies and inconsistencies in her testimony, particularly regarding: (i) her misrepresentation of the timeliness of her payment of decedent's municipal, property and school taxes for 1997-1998; and (ii) her use of her deceased father's [*6](Robert's) Social Security identification number on the application to open Citibank-Investment # 1. In addition, her testimony that she lacked personal ESTATE OF ARTHUR BUXTONFile No. 1951/99

knowledge of the content of decedent's business mail was contradicted by documentary evidence that in March 1999, she attempted to have all of decedent's mail forwarded to her home without his authorization. Also, her contention that decedent cashed and kept all of his income in the strongbox is belied by the testimony of Cita as to decedent's customary disposition of income checks at banking facilities. Similarly, her contention that she never had access to any Social Security and pension income is undermined by her testimony that these funds were "direct deposited" into decedent's bank accounts at least during the last few months of decedent's life. Moreover, whenever called upon to substantiate her personal financial transactions, including the purchase of a home during the period in question, or the funding of any new account, whether fully or partially, with her own funds, respondent produced only sporadic bank statements and a dearth of personal receipts and records. In short, the Court finds that respondent explicitly commingled decedent's funds with her own, and has failed to adequately explain numerous discrepancies regarding the growth of her personal assets coincidentally with significant diminutions of decedent's assets in the accounts in question.

As to the affirmative defenses raised by respondent in both proceedings, to wit: (i) that decedent gifted the bank accounts in question to her and/or that they were joint bank accounts with a right of survivorship, the Court finds them to be without merit. [FN3] ESTATE OF ARTHUR BUXTONFile No. 1951/99

As to respondent's contentions that the accounts in question were inter vivos gifts, it is well settled that the alleged donee of a gift has the initial burden to establish, by clear and convincing evidence: (i) intent by the donor to make the transfer; (ii) delivery, either actually or constructively; and (iii) acceptance (see, Gruen v Gruen, 68 NY2d 48; Matter of VanAlstyne, 207 NY 298). However, if the party challenging the gift establishes that a "confidential relationship" existed between the donor and donee, it becomes incumbent upon the donee to establish, by clear and convincing evidence, not only the aforementioned elements, but also that the transfer was voluntary and free from undue influence or restraint imposed by the donee upon the donor (see, Matter of Gordon v Bialystoker Center & Bikur Cholim, 45 NY2d 692). Also, in the event the donee's relationship with the donor is a fiduciary relationship either de jure or de facto, the donee must corroborate the gift in all respects by testimony and evidence elicited from disinterested witnesses (Matter of Corse's Estate, 182 NYS2d 514, affd 13 AD2d 651).

Initially, in light of the testimony elicited at trial with respect to the nature and extent of decedent's dependence upon respondent during the six years in question, the Court concludes that respondent's relationship with decedent amounted to a "confidential relationship" (compare, Matter [*7]of Knight, NYLJ, March 13, 1995, at 29, col. 3 [NY - Preminger] [management of bank account and writing of checks, standing alone, not sufficient to establish confidential relationship]). In any event, upon review of the record, the Court finds that respondent failed to present competent evidence in admissible form ESTATE OF ARTHUR BUXTONFile No. 1951/99

to establish and/or corroborate all elements of an inter vivos gift by "clear and convincing" evidence. Therefore, the seventh and eighth affirmative defenses raised in the answer to the compulsory accounting petition are dismissed.

As to respondent's contentions that the accounts in question were joint accounts with right of survivorship, it is settled that when a bank account is opened in two names and specific words of survivorship appear on the signature cards or the ledger creating the account, a rebuttable presumption arises under Banking Law § 675 that the account is held jointly with a right of survivorship (see, Banking Law § 675[b]; Kleinberg v Heller, 38 NY2d 836; Matter of Fenelon, 262 NY 308). In the absence of proof evidencing such language, or an adequate showing under the common law that decedent intended to create a joint tenancy, a presumption arises under EPTL 6-2.2(a) that the account is a tenancy-in-common (see, Matter of Randall, 176 AD2d 1219; Matter of Timoshevich, 133 AD2d 1011). The foregoing presumptions can be overcome with "clear and convincing" evidence that the account was opened for the convenience of the depositor and not with the intention of conferring a beneficial interest on the co-tenant (see, Matter of Donahue, 262 AD2d 840), or that the account was improperly created by reason of fraud, undue influence or lack of capacity (see, Kleinberg v Heller, supra; see generally, Matter of Friedman, 104 AD2d 366, affd 64 NY2d 743). However, where a fiduciary or confidential relationship exists between the co-tenants, the burden of going forward to establish that the decedent knowingly and wilfully intended to create a joint account shifts to the surviving co-tenant (see, Matter of Camarda, 63 AD2d 837, 839).

ESTATE OF ARTHUR BUXTONFile No. 1951/99

Upon review of the record, the Court finds that respondent failed to present competent evidence in admissible form to sustain a prima facie showing of her entitlement

to the statutory presumption of right of survivorship under Banking Law § 675 with respect to the accounts in question (see, e.g., Matter of Ancell, 191 Misc 2d 252). Nor was the competent admissible evidence sufficient to establish a common law survivorship account without the benefit of the statutory presumption (cf., Sutton v Bank of New York, 250 AD2d 447; Matter of Butta, 192 Misc 2d 614). Therefore, the second affirmative defense raised in the answer to the compulsory accounting petition and both affirmative defenses raised in the answer to the discovery petition are dismissed, with prejudice.

Moreover, the Court finds that any presumption under EPTL 6-2-2 that respondent is a surviving tenant-in-common of the accounts in question has been adequately rebutted by the proof at trial. In this regard, the record demonstrates: (i) the accounts in question were funded [*8]primarily by decedent's assets; (ii) respondent and decedent stood in a confidential relationship at the time the accounts in question were funded; (iii) petitioner presented adequate proof, in competent admissible form, that the accounts were set up as a matter of convenience; and (iv) a lack of competent, admissible evidence that decedent intended to make a gift of the accounts to respondent (see, Matter of Klecar, 207 AD2d 732; Matter of Timoshevich, 133 AD2d 1001, supra, at 1012).

In light of the foregoing factual findings, the remaining affirmative defenses raised by respondent in the answer to the compulsory accounting petition are dismissed, as moot or meritless. Therefore, the bank accounts in question are to be included in ESTATE OF ARTHUR BUXTONFile No. 1951/99

decedent's estate, subject to respondent's right to pursue her claim of ownership of a portion of the accounts in question, based on her allegation that her personal funds were co-mingled in the accounts, in the prospective accounting proceeding.

Accordingly, petitioner's application to have respondent account as de facto fiduciary of decedent's assets is granted. Within 120 days of the date of personal service upon her of the decree to be settled, respondent shall file an account of her proceedings with respect to decedent's assets from March 1, 1993 through February 28, 1999, along with a petition to have said account judicially settled.

Additionally, petitioner's application for discovery is granted, to the extent that within 120 days from the date of personal service upon her of the decree to be settled, respondent shall furnish to the Court all available records, both institutional and personal, for the period March 1, 1993 through February 28, 1999 with respect to: (i) the establishment and monthly administration of the bank and credit card accounts in question [Petition - Paragraph 5, Items (a), (b), (c), (d), and (h)]; (ii) all of decedent's Social Security and pension checks, and rent payments [Petition - Paragraph 5, Items (e), (f), and (g); and (iii) billings and payment receipts from applicable suppliers and utilities for 136 Remington [Petition - Paragraph 5, Items (i)and (j)].

Settle one decree.

Dated:White Plains, NY

October 23, 2003

Decision Date: October 23, 2003 Footnotes

Footnote 1:During the probate proceeding in this estate, petitioner sought to prevent respondent's appointment as executrix, based on the allegations regarding her handling of decedent's assets raised herein (see, SCPA 709, 711). Respondent ultimately renounced her right to serve as executrix, and, in January 2000, petitioner became executrix upon the admission of the will to probate.

Footnote 2:Respondent testified that sometime in 1995, she transferred title to the Citibank-Checking/Savings account from her sole ownership to her ownership "in trust for" her daughter.

Footnote 3:Respondent's affirmative defense of lack of personal jurisdiction, raised in response to the compulsory accounting petition, was previously rendered moot (see, Matter of Buxton, NYLJ, Jan. 26, 2001, at 32, col. 5).