Matter of McNair

[*1] Matter of McNair 2007 NY Slip Op 51223(U) [16 Misc 3d 1102(A)] Decided on May 23, 2007 Sur Ct, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2007
Sur Ct, Dutchess County

In the Matter of Probate Proceeding, Will of Richard McNair, Jr., Deceased.



95741/06



TO:ROBERT L. OSTERTAG, ESQ.

OSTERTAG, O'LEARY & BARRETT, ESQS.

Attorneys for Petitioners

17 Collegeview Avenue

Poughkeepsie, New York 12601

James D. Pagones, J.

The decedent died testate on November 27, 2006. The propounded instrument is dated September 28, 1990.

The decedent nominates Charles O'Donnell, Jr. and Ola Mae Cherry to serve as co-executors. They have jointly petitioned the court to admit the will to probate.

On June 30, 1995, co-petitioner O'Donnell was sentenced in Dutchess County Court as a result of his conviction of Grand Larceny in the Third Degree, a class D felony (Penal Law §155.35). O'Donnell was an attorney licensed to practice in New York at the time. Information provided to the sentencing judge indicated that claims filed by at least two estates alleged that losses amounting to more than sixty-eight thousand dollars ($68,000.00) were a direct result of O'Donnell's dishonesty. O'Donnell was disbarred subsequent to his conviction. (Judiciary Law §90, subd. 4[a] and [e].)

On May 19, 2005, a Certificate of Relief from Disabilities was issued by the County Court to permit O'Donnell to pursue employment opportunities. He remains ineligible for public office.

SCPA §707 identifies those persons ineligible to receive letters. The statute is clear that a person is ineligible if he is convicted of a crime constituting a felony under New York law. (Matter of Thompson, 75 Misc 2d 508 [Surr Ct, NY County 1973]; Turano & Radigan, New York Estate Administration, 2007 Edition, §14.02[c]; SCPA §707[1][d].) Such is the case here.

The Certificate of Relief does not alter the statute's mandate. It merely affords O'Donnell the privilege of obtaining gainful employment. It is noted that he remains ineligible to hold public office, a position for which society's trust is rightfully expected.

It is noted further that claims against O'Donnell because of his duplicity were filed by at least two estates. A fiduciary must be faithful, diligent and prudent. He or she must never advance personal interests at the expense of the beneficiaries. A fiduciary must avoid placing himself or herself in a position where his or her own personal interests conflict with those of the estate. Nor may a fiduciary engage in self-dealing with assets of the estate without leave of the court. (41 NY Jur. 2d, Decedents' Estates, §§1450 and 1451.) There is justification in the record [*2]to disqualify O'Donnell under SCPA §707(1)(e) as well.

I find that Charles O'Donnell is ineligible to serve as co-executor pursuant to SCPA §707(1)(d) & (e).

There is no opposition to the probate of the will. Its genuineness and the validity of its execution have been demonstrated. It is admitted to probate. (SCPA §1408; EPTL §3-2.1.)

Counsel for petitioner is directed to submit a decree consistent with the foregoing within ten (10) days of service of a copy of this decision.

This constitutes the decision of the Court.

Dated:Poughkeepsie, New York

May 23, 2007

ENTER

HON. JAMES D. PAGONES, S.C.J.

052207 decision