Matter of Mercer
Annotate this CaseDecided on March 8, 2010
Sur Ct, Bronx County
In the Matter of Estate of Leon F. Mercer, also known as Leon Francis Mercer, Deceased.
2009/2308-A
Stephen Bilkis & Associates, P.C., (William T. Tootley, Esq., of counsel) for Irving K. Mercer, petitioner
Timothy J. Mercer, pro se, cross petitioner
Lee L. Holzman, J.
In this estate, two nephews of the decedent filed a petition and cross petition for letters of administration. The decedent died intestate on February 25, 2009. His distributees are five nephews. The petitioner and one other nephew are the children of one of the decedent's predeceased brothers, while the cross petitioner and two other nephews are the children of the decedent's other predeceased brother.
The petitioner, who lives in Ohio, commenced this proceeding on October 26, 2009. He is represented by counsel and alleges that the primary estate asset is Bronx realty in disrepair, valued at $358,000, on which mortgage, insurance and tax arrears exist. He states he is in the process of obtaining an appraisal of the realty and has received several offers from interested parties willing to purchase the property in an "as is" condition. The petitioner's brother filed a waiver of citation and consent to the petition, and jurisdiction was acquired over the remaining three nephews. One of the respondents, pro se, filed a cross petition for letters of administration.
The cross petitioner, who lives in Queens, New York, commenced this proceeding on or about November 25, 2009, after being served with the citation. One of the cross petitioner's brothers executed a waiver and consent and a sworn handwritten statement stating that he supports the application of the cross petitioner and does not trust the petitioner. His other brother submitted a sworn handwritten statement to the effect that he supports the cross petitioner's application.
The petitioner and cross petitioner are equally eligible to serve (SCPA 1001 [1] [f]), and neither contends that the other is statutorily disqualified from serving as fiduciary of the estate. Where, as here, two apparently eligible distributees have the same share in the estate and, accordingly, are equally entitled to administer the estate, the court has the discretion to appoint one or both of them (SCPA 1001 [1] [f] [i]). In the absence of circumstances militating in favor of a different result, the court will appoint the distributee selected by the distributees entitled to the [*2]largest share of the estate (see SCPA 1001 [1] [f]; Matter of Doyle, 10 Misc 3d 1077 [A], 2006 NY Slip Op 50108 [U]) or, if the shares are equal, the one preferred by a majority of the distributees (see Matter of Pi-Eng Liu Wu, 6 Misc 3d 1012 [A], 2004 NY Slip Op 51777 [U]). Generally, where apparent friction, antagonism or hostility exists between persons in the same class of priority for appointment and they are unable to agree as to an appointment, the court will avoid issuing letters jointly to them, as distributees who clash over who should receive letters are probably incapable of administering the estate together (see Matter of Sheppard, 63 AD3d 1358 [2009]; Matter of Eisenstein, 158 AD2d 597 [1990]; Matter of Florio, __ Misc 3d __, 2009 NY Slip Op 29532 [Sur Ct, Nassau County 2009]). In this estate, the parties expressed their mutual distrust and inability to agree based on a division along family lines and the cross petitioner stated on the record that he did not want to serve with the petitioner.
In exercising its discretion to select one of multiple distributees, the court may consider factors such as each distributee's: (1) relationship with the decedent; (2) business experience; and, (3) familiarity with the decedent's affairs (see Matter of Florio, 2009 NY Slip Op 29532 supra). Ultimately, the court will exercise its discretion to appoint the distributee whose appointment the court deems to be in the best interests of the estate (see Matter of Eisenstein, 158 AD2d at 597; Matter of Florio, 2009 NY Slip Op 29532 supra; Matter of De Hart, 8 Misc 2d 531 [1957]).
Here, notwithstanding that the petitioner lives in Ohio, he filed his petition one month prior to the cross petitioner, he is represented by counsel and is clearly familiar with the nature and extent of the decedent's assets and estate liabilities, and he hired a real estate broker and is in the process of obtaining appraisals of the realty. In contrast, and notwithstanding that the cross petitioner lives in New York and has the support of his two brothers, he waited until after he was served with the citation to commence his cross proceeding. Furthermore, his papers display no familiarity with the nature and extent of the decedent's assets or estate liabilities and, presently, he is proceeding pro se, although he did state on the record that he would retain counsel in the event that he prevails and is appointed the administrator
The complexity of the problems relating to the real property indicate that the fiduciary should immediately address them with the assistance of counsel. Considering all the factors, it appears to be in the best interests of the estate to grant letters of administration to the petitioner (see Matter of De Hart, 8 Misc 2d at 531).
Accordingly, the petition is granted, and the cross petition is dismissed. Letters of administration, subject to the provisions of SCPA 805 (3) with regard to the disposition of the real property, shall issue to the petitioner upon his posting a bond in the penal sum of $100,000. Furthermore, the decree to be entered hereon shall provide that the administrator or his attorney shall notify the cross petitioner as soon as the administrator enters into a contract to sell the realty, and shall provide a copy of that contract and any appraisal that was obtained to the cross petitioner. The Chief Clerk shall mail a copy of this decision to counsel for the petitioner and to the pro se cross petitioner.
Settle decree.
SURROGATE
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