Matter of Lewis

[*1] Matter of Lewis 2007 NY Slip Op 52244(U) [17 Misc 3d 1133(A)] Decided on November 28, 2007 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2007
Sur Ct, Bronx County

In the Matter of the Estate of Iris Lewis, Deceased.



576-A/06



Reginald Asiedu, Esq., for Georgia Lucille Woollery, petitioner

Frank J. Loverro, Esq., for Joseph Farquharson, respondent

Lee L. Holzman, J.

The decedent's daughter petitions, inter alia, for the entry of a decree granting the following relief: (1) revoking the letters of administration that issued to the respondent, the decedent's son, pursuant to a decree entered October 11, 2006; (2) compelling the respondent to account for the period that he served as administrator of the estate; and (3) appointing the petitioner administratrix d.b.n. of the estate. The petitioner contends that the respondent's letters should be revoked due to his false statements of material fact in the administration petition (SCPA 711[4]). Specifically, she asserts that the respondent falsely stated that he is the decedent's only child and sole distributee, and that the decedent did not own a beneficial interest in any real property. The parties stipulated that the application should be determined upon the papers submitted.

The respondent concedes that the petitioner is the decedent's daughter and a distributee who is entitled to 50% of the estate. He contends that his failure to list the petitioner as a distributee was an inadvertent mistake, and the result of his truthful statement to his former attorney that he was the only child of both of his parents. However, the respondent alleges that he never told the attorney that he was the decedent's only child and that he was not aware of his attorney's mistake because he never read the administration petition.

The respondent also concedes that real property located at Undercliff Avenue in the Bronx is owned by himself and the decedent as tenants in common. However, he contends that he did not intend to deprive the petitioner of her share of the decedent's 25% interest in that property. He would have the court infer that he inadvertantly neglected to list this property in the administration petition because he expended significant sums to maintain and repair the property, which was not income-producing. The respondent reiterates his statements in the administration petition that the decedent was only an "accommodation" owner of real property located at Sedgwick Avenue in the Bronx and the sole beneficial owner of that property is the decedent's brother, who submitted an affidavit in the administration proceeding unequivocally stating that the petitioner was the decedent's only distributee. In any event, the respondent's position is "no harm, no foul," and he requests that he and the petitioner serve as co-administrators.

Many cases broadly state that an inaccurate statement "as to kinship" in a petition for letters mandates the revocation of a fiduciary's letters on the ground that the letters were obtained by a false [*2]statement of material fact, and this result is required notwithstanding that the inaccurate statement was made in good faith and without any intent to commit a fraud (Matter of Barasch, 32 Misc 2d 548, 549 [1962] citing Kerr v Kerr, 41 NY 272, 276; Matter of Rathyen, 115 App Div 644; Matter of Gaffney, 141 Misc 453; see also Matter of Beard, 135 AD2d 1122 [1987]; Raysor v Gabbey, 57 AD2d 437 [1977]; Matter of D'Onofrio, 97 Misc 2d 250 [1978]; Matter of Santiago, 5 Misc 3d 1014 [A] [2004]).

The above- cited cases clearly hold that, regardless of scienter, the fiduciary's letters must be revoked where the fiduciary's application for letters of administration failed to list a distributee who had priority over the petitioner in the granting of letters under SCPA 1001. However, none of those cases involved a fact pattern where the petitioner who received the letters had priority over a distributee who was not listed in the petition because the petitioner, in good faith, was not aware of the existence of that distributee. Thus, a strong argument could be made that a bright line revocation rule should not be extended to every instance where, in good faith, a distributee is omitted in the original petition, such as where a non-marital child or a child from a prior marriage unknown to the surviving spouse appears after letters have issued to the spouse.

Here, even assuming, arguendo, that a good faith failure to list a person as a distributee in an administration petition does not automatically result in the revocation of letters in every instance, the respondent's letters must be revoked for the following reasons: (1) the respondent does not claim that he was unaware of the existence of the petitioner and, instead, blames the failure to include the petitioner as a distributee on an inadvertent mistake on the part of his former attorney (an allegation which has not been supported by an affidavit from that attorney) and his own carelessness in failing to read the petition; (2) the respondent concedes that his application for letters of administration failed to include a parcel of real property owned by the decedent and himself as tenants in common; (3) the respondent, in support of his application for letters, submitted an affidavit from the decedent's brother, which the respondent also alleges that he did not read, in which the brother made the same "mistake" as the respondents' former attorney, to wit , omitting the petitioner as a distributee; and (4) the respondent's failure to list the petitioner as the decedent's child in his administration petition deprived her of the opportunity to oppose his application in a proceeding in which no presumption would exist that either of them was entitled to priority in receiving letters (see SCPA 1001[1]).

Accordingly, for the foregoing reasons the petition is granted to the following extent: (1) the letters of administration issued to the respondent are to be revoked pursuant to SCPA 711(4); (2) the respondent shall render and judicially settle his account as administrator within 60 days of the entry of the decree to be settled hereon; and (3) inasmuch as the respondent was served with process notifying him that the petitioner desires to be the administratrix of the estate and has, in effect, conceded that she is qualified by virtue of his proposal that she serve as co-administrator, letters of administration d.b.n. shall issue to the petitioner, without service of additional process, upon her filing an administration petition and otherwise qualifying as required by the court.

The broad relief granted herein embraces almost all of the petitioner's requests for relief that can be granted by an order or decree of this court. Should the petitioner ultimately be able to establish facts and cite authority demonstrating that this case is not governed by the usual rule that the prevailing party cannot obtain counsel fees from the other party, the court will entertain a request for such relief in any future accounting or other appropriate proceeding [*3]

Settle decree.

SURROGATE