Matter of Jones
Annotate this CaseDecided on December 16, 2009
Sur Ct, Bronx County
In the Matter of the Estate of Milton S. Jones, Deceased.
88-A/2004-A
The appearances are as follows:
Novick & Associates (Michael J. Sullivan, Esq., of Counsel) for Deborah Simmons, adminsitratrix-movant
Leonie Lisette Jones, pro se, respondent
Athelston Jones, pro se, respondent
Lee L. Holzman, J.
This is a motion for summary judgment by the administratrix d.b.n., who is the mother and guardian of the property of the decedent's infant son, seeking to void a deed dated June 20, 2005 executed by the respondents, the former co-administrators, as grantors, purportedly conveying an apartment building owned by the decedent located at 1243 Webster Avenue, Bronx, New York to themselves individually. The respondents are the decedent's daughter and the decedent's brother.
Pursuant to a decree dated March 10, 2004, letters of administration, subject to the provisions of SCPA 805 (3), issued to the respondents. The respondents represented in their administration petition that the daughter was the decedent's sole distributee. This representation was false as it appears that the respondents were aware of the infant son. The decedent's paternity is established by an order of filiation from the Family Court, Bronx County entered during the decedent's lifetime and a birth certificate indicating that the decedent is the father of the movant's infant son.
The movant previously commenced a proceeding to revoke the letters of administration issued to the respondents, to compel an accounting and to void the deed to the subject property and a $400,000 mortgage to Eastern Savings Bank dated the same date as the deed transfer. That proceeding was settled in part by a stipulation pursuant to which the daughter's letters were revoked and the movant replaced her as one of the co-administrators by decree dated September 17, 2007. At that time it was contemplated that the co-administrators would cooperate in selling the property and the brother would execute a deed to effectuate the sale. However, despite two offers to purchase the property, no sale was consummated.
The movant thereafter petitioned to revoke the brother's letters of administration on the following grounds: (1) he failed to account for funds collected on behalf of the estate; (2) he failed to notify the court of a change of address; and, (3) he failed to cooperate in selling the property because of his liability arising from increasing the mortgage debt on the property to $600,000. This application was granted, and the letters of administration that issued to the brother were revoked by decree dated June 1, 2009. Thus, the movant is now the sole fiduciary of the estate. [*2]
The respondents, who were formerly represented by counsel, failed to appear on several adjourned dates of the instant application or offer any proof in opposition to the application. In contrast, the movant has offered the following documentary evidence: (1) a deed transferring the subject realty from the respondents in their fiduciary capacity to themselves individually, accompanied by the applicable recording documents; (2) two mortgages encumbering the realty that were executed by the respondents, the first dated June 20, 2003 in the sum of $400,000, and thereafter increasing the lien to $600,000; and, (3) the respondents' original petition for letters of administration and accompanying documents that omit the infant distributee.
The movant has met her burden of proof by establishing that the respondents purported to execute a deed in accord with the directions of the decedent's sole distributee but, in fact, fraudulently omitted the infant and, without consideration, conveyed the premises to the daughter and the brother, a non-distributee, and thereafter mortgaged the property and converted the proceeds. The respondents' gratuitous conveyance as co-administrators to themselves individually and the subsequent mortgages placed on the property, without making an application to remove the SCPA 805 (3) limitation placed upon their letters of administration, was clearly a fraudulent conveyance in violation of the fiduciary duties that they owed to the infant distributee of the decedent's estate (see Matter of Rothko, 43 NY2d 305 [1977]; Matter of Culbreth, 48 AD3d 564 [2008]; Matter of Kinzler, 195 AD2d 464 [1993]; Matter of Fulton, 253 App Div 494 [1938]).
Accordingly, the instant application is granted, and the deed transferring the realty from Leonie Lisette Jones and Athelston Jones as administrators to Leonie Lissette Jones and Athelston Jones, individually, dated June 20, 2005 and recorded on November 30, 2005 at the Bronx County Register, City Register File No. (CRFN) 2005000661790 should be voided and cancelled of record. In reaching this determination, the court in no way passes on the rights of any party who was not served with process in this proceeding or on the rights that any such individual or entity may have against either or both of the respondents (see Matter of Deans, _____AD3d_____ [2009]; 2009 NY Slip Op 9025).
Despite the default of the respondents, the decree to be entered hereon is to be settled upon them.
Settle decree and proceed accordingly.
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SURROGATE
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