Matter of Bassen
Annotate this CaseDecided on May 28, 2004
Surrogates Court, Westchester County
In the Matter of the Application for a Compulsory Accounting in the Estate of FRANCES BASSEN, a/k/a FRANCES S. BASSEN, Decedent.
3179/2002
Carl J. Mayer, Esq.
Petitioner Pro Se
58 Battle Road
Princeton, N.J. 08540
Stanley M. Ackert III, Esq.
Gersen, Blakeman & Ackert LLP
Attorneys for Daniel Gersen, Executor
270 Madison Avenue, Suite 1207
New York, NY 10016
Anthony A. Scarpino, J.
This proceeding to compel an accounting is brought by Carl Mayer (the petitioner) against the executor (the respondent) of the estate of Frances Bassen (the decedent). The respondent now moves to dismiss the petition pursuant to CPLR 3211 (a)(3) and (7), based upon the petitioner's alleged lack of standing.
The decedent passed away on November 14, 2002. Her will was admitted to probate and letters testamentary were issued to the respondent on April 30, 2003. The decedent was survived by two distributees: Nancy Mayer, who is the petitioner's mother, and Sally Morse. The will provided for a number of legacies to named individuals, and an equal division of the remainder of the estate between her two daughters.
In addition to these bequests, the decedent's will included the exercise of a power of appointment created under the will of Ralph Freydberg, her late husband. Ralph Freydberg's will created a trust for his wife's benefit, income payable to her for life, and gave her a power of appointment over the remainder. In her will, the decedent appointed a 1/7th share of the trust to the petitioner, and the remaining shares to other persons. The petitioner now seeks to compel an accounting of the estate based upon his status as an appointee of a share in the remainder of the Freydberg trust.
The respondent asserts that the petitioner is not a person interested in the estate for the purposes of SCPA 2205, which defines the persons who have standing to compel a fiduciary accounting. The executor points out that the petitioner has no current or contingent pecuniary interest in the decedent's estate as he is neither a distributee nor a named beneficiary. The petitioner responds that he is a person named in the will and is the decedent's grandson, thereby meeting the definition of a "person interested" as defined in SCPA 103(39) and 2205.
SCPA 2205(1) sets forth a limited list of persons who may petition for an accounting, including a "person interested". SCPA 103(39) defines a "person interested", in pertinent part, as "(a)ny person entitled or allegedly entitled to share as beneficiary in the estate..." (see also SCPA 103[8]). An individual's entitlement may arise either from his status as a [*2]distributee, which is defined in SCPA 103[14] as one who is entitled by statute to share in property not disposed of by will (see EPTL 4-1.1 et seq) or from a gift of real or personal property made in a decedent's will (see SCPA 103 [13], [33]). Here, the decedent was survived by issue, her two daughters, thus cutting off the inheritance rights of more remote relatives such as grandchildren (EPTL 4-1.1[a][3]; see In re Landers' Estate, 100 Misc 635). The petitioner is therefore not a distributee as defined in SCPA 103[14], and may not claim rights arising from his status as the decedent's grandchild (see In re Lawrence's Estate, 271 App Div 897).
The petitioner also asserts that he was mentioned by name in his grandmother's will and given a legacy. However, the decedent's will made no gift of personal property in her own estate to him. Instead, she exercised a power of appointment which conferred upon him an interest in Freydberg's estate, in the form of a share in the remainder of a testamentary trust. The interest which was created is not one in the estate of the decedent, but in the estate of her deceased spouse. Additionally, it is not disputed that the legacy was paid, and the petitioner executed a release and receipt. The petitioner, therefore, has no remaining pecuniary interest in either estate, and lacks a tangible stake in the matter which would confer standing to challenge the fiduciary's actions (see SCPA 2210[7]; see also Alco Gravure v The Knapp Foundation, 64 NY2d 458, 466).
Because the petitioner's pleadings do not aver that he has an interest which falls within the restrictive statutory definitions of SCPA 2205(1), he has not established that he has standing to compel an accounting of the decedent's estate (Matter of the Estate of Guattery, 238 AD2d 820, 821; see also Matter of Ziegler, 157 Misc 2d 423, 427). The cases cited by the petitioner do not hold to the contrary.
As a further ground for the dismissal of the petition, the Appellate Division, Second Department has held that an individual who is not a member of the class of persons required to be served with process in an accounting as defined in SCPA 2210 is not a proper party to that accounting proceeding in this estate (In the Matter of Lupoli, 275 AD2d 780). Because the petitioner is not a distributee, legatee or devisee of the decedent, nor does he claim to fall within any of the other groups mentioned in that statute, no service upon him would be required in an accounting proceeding. Thus, he has no standing to compel an accounting for this estate (In the Matter of Lupoli, 275 AD2d 780; cf Benjamin v Morgan Guaranty Trust Co. Of NY, 163 AD2d 135, 137).
The petitioner, an attorney, asserts that he represents others interested in the decedent's estate, but did not submit Notices of Appearance and Authorizations on their behalf. The Court has also considered the other arguments presented, and found them without merit.
The petitioner has also requested that the Court compel an accounting, in the exercise of its inherent supervisory powers under SCPA 2205. The respondent's papers include a copy of an account which was rendered to the interested parties. That account is in the format required in a judicial accounting, and has been reviewed by counsel for the interested parties, who have presumably consulted with their clients as to its adequacy and appropriateness.
The cited discrepancy between the amounts of the taxable estate and the probate estate is not an indicator of fraud, but a reflection of the fact that taxable estates include assets which are not part of probate estates, such as insurance policies and bank accounts [*3]which pass by operation of law to joint tenants or beneficiaries of Totten trusts. In short, the Court finds no facial irregularity in the account, nor support for the proposition that the fiduciary should be compelled to account. Adequate grounds for the Court to compel a full accounting have not been demonstrated.
Accordingly, the motion to dismiss the petition is granted in all respects, and the petition is hereby dismissed with prejudice.
The papers considered upon the instant application consist of: (I) Notice of Motion to Dismiss Petition Under CPLR 3211 and Affidavit of Daniel Gersen in Support of Motion, dated March 4, 2004, and all papers annexed thereto; (ii) Affidavit of Carl J. Mayer in Opposition to Motion to Dismiss Petition Pursuant to CPLR 3211(a), dated March 24, 2004 and all papers annexed thereto; (iii) Reply Affidavit of Daniel Gersen in Support of Motion to Dismiss Petition Pursuant to CPLR 3211 (a)(3) and (7), dated March 15, 2004 and all papers annexed thereto and (iv) Sur reply in Opposition to Executor's Motion to Dismiss and in Support of the Petition to Compel an Accounting, dated March 25, 2004.
THE FOREGOING CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: White Plains, NY
May 28, 2004
_______________________________
HON. ANTHONY A. SCARPINO, JR.
Westchester County Surrogate
Carl J. Mayer, Esq.
Petitioner Pro Se
58 Battle Road
Princeton, N.J. 08540
Stanley M. Ackert III, Esq.
Gersen, Blakeman & Ackert LLP
Attorneys for Daniel Gersen, Executor
270 Madison Avenue, Suite 1207
New York, NY 10016
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